d02/14/06 ?age1?EQI?s 63o 4? 5,5? x6?! J- a I James M. Finberg (State Bar No. 114850) Steven M. Tindall (State Bar No. 187862) Peter E- Leckman (State Bar No- 235721) LII-EFF, CABRASER, HEMANN BERNSTEW, LLP Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Counsel for the Plaintiij UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GOPI VEDACHALAM, on behalf of himself and all others similarly situated, Plaintiffs, V. TATA AMERICA INTERNATIONAL CORPORATION, a New York corporation; TATA CONSULTANCY SERVICES, LTD, an Indian Corporation; and TATA SONS, LTD, an Indian Corporation. Defendants. 494361.4- 1: . 446.9313, If; .. em?" 06 09* CLASS ACTION COMPLAINT FOR: (1) (2) BREACH OF (3) UNJUST mm; EMPLOYEE REPAYNIENT OF WAGES (CAL. LAB. CODE 221}; (5) WAITING TIME PENALTIES (CAL. LAB. CODE 2111-203); (6) RECORD-KEEPING VIOLATIONS LAB. CODE 226, 1174); VESIED VACANON mo: AND PAY (CAL LAB. CODE 201-203, mas, 227.3}; UNLAWFUL BUSINESS PRACIICES (CAL. BUS. PROF. coon 17200, et seq.) DEMAND FOR JURY TRIAL CLASS ACTION COMPLAINT MR RELIEF Class that TCS breached its employment contracts with its employees by failing Documentl-l Filed02/14/06 Page2 of 23 PRELIMINARY STATEMENT Individual and representative Plaintiff Gopi Vedachalam, on behalf of himself and all others similarly situated, alleges as follows: 1- Gopi Vedachalam brings this class action on behalf of a class, and sub- class, of employees of Tata Consultancy Services, Ltd. and Tata Sons, Ltd, Indian corporations headquartered in Mumbai, India, as well as their US. subsidiary, Tata America International Corporation (collectively referred to as TCS or Defendants). The class consists of all non-US.- citizen employees working for TCS during the period February 14, 2000 through the date of judgment in this action (the ?National Employee Class?). The subclass consists of those members of the National Employee Class employed in California at any time from February 14, 2002 through the date of judgment in this action (the ?California Employee Subclass?). 2. Mr. Vedachalam alleges on behalf of himself and the National Class that TCS committed conversion and was unjustly enriched by illegally requiring all of its non-US.- citiaen employees to endorse and sign over to TCS their federal and state tax refund checks. Vedachalam, on behalf of himself and the National Class Members, seeks damages, injunctive relief, and restitution of all unjust enrichment Defendants have enjoyed as a result of these practices. 3. Mr. Vedachalam alleges further on behalf of himself and the National to pay these employees the gross wages that TCS promised in the employees? employment contracts. Vedachalam, on behalf of himself and the National Class Members, seeks damages, injunctive relief, and restitution of all unjust enrichment Defendants have enjoyed as a result of these practices. I 4. Mr. Vedachaiam alleges on behalf of himself and the California. Subclass that by requiring that their tax refund checks to be signed over to the company, TCS unlawfully collected wages from its employees. Mr. Vedachalam' further alleges that at least until 2005, TCS had an unlawful ?use?it?or?lose?it" vacation policy, whereby the California Subclass members would forfeit vacation time that they earned but did not use- 4943514 1 - - cuss ACTION son RELIEF Documentl-l Filed02/14/06 Page3 of 23 5. Mr. Vedachalam, on behalf of himself and the California Subclass, seeks to recover wages that Defendants improperly reouired to be returned to vested vacation time, vacation pay and interest thereon; waiting time penalties; declaratory relief; injunctive and other equitable relief; and reasonable attorneys? fees and costs, under California Labor Code 201- 203, 213-5, 221, 226, 227.3, and 1174. Mr. Vedachalam, on behalf of himself and the California Subclass Members, also seeks injunctive relief and restitution of all unjust enrichment Defendants have enjoyed from their violations of California Labor Code under Business and Professions Code 1720047208. JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction ever this action pursuant to 28 U.S.C. 1332, as recently amended by the Class Action Fairness Act, because the aggregate amount claimed by the individual members of the proposed National Class and California Subclass exceed $5,000,000, exclusive of interest and costs. The National Employee Class exceeds 100 persons, and its members are citizens of India and other countries, and Tata America International is a citizen of New York. The California Subclass exceeds 100 persons, and the Subclass members are citizens of India and other countries who are residing in California, and Tata America International is a citizen of New York. 7. Personal jurisdiction over TCS is proper because it has purposefully availed itself of the privilege of conducting activities within the State of California by employing workers within California, and selling its services within the State. TCS generally has maintained systematic and continuous business contacts with California- 8. Venue is proper in this district pursuant to 42 U.S.C. 2000e5{f) and 23 U.S.C. 1391 3.: Many of the acts complained of herein occurred in this District and gave rise to the claims alleged. TCS conducts business in this District and employs hundreds of workers within the State of California. THE PARTIES 9. Plaintiff Gopi Vedachalam is a citizen of India, legally working and living in California under an L-l visa. (The L1 visa is used to transfer an employee to a US parent, 49435:.4 2 - crass xenon comm-MT non RELIEF .19Documentl-l Filed02/14/06 Page4 of 23 affiliate, subsidiary, or branch of?ce from a related foreign company.) In 199?, Mr. Vedachalam began working for Tata Consultancy Services in Bangalore, India. In April 2000, Tata Consultancy Services ?deputed? Mr. Vedachalam, sending him to work for Tata America International in the United States; Since IApril 2000, Mr. Vedachalam has worked in the United States for Tata America International. From 2000 to 2003, Vedachalam worked in Hayward, California, as a TCS project manager for Target; since 2003, he has worked as?a TCS project manager for let Century Insurance in Woodland Hills, California. 10. Defendant Tata America International Corporation (?Tata America?), a US. subsidiary of Tata Consultancy Services, Ltd, is, arid at all times mentioned herein was, a New York corporation operating in the San Francisco Bay Area as well as throughout the State of California and the United States. Tata America?s principal place of business is in New York, New York. 11. Defendant Tata Consultancy Services, Ltd. is an Indian corporation with its principal place of business in Mumbai, India. TCS is wholly owned by Defendant Tata Sons, Ltd., an Indian corporation. 12. Defendant Tata Sons, Ltd, is an Indian corporation. with its principal place of business in Munibai, India- Tata Sons is the parent company of TCS. CLASS ALLEGATIONS I II I H13. Vedachalarn brings this class action pursuant to 23(a), and on behalf of: (1) a f?NationaI Employee Class,? which includes all non-US.? citizen employees of TCS working in the United States at any time during the period of February 14, 2000 through the date of judgment in this action; and (2) a ?California Employee Subclass," which includes employees of TCS working in California at any time during the period February 14, 2002 through the date of judgment in this action. A. Mal Employee Class 14. Plaintiff Vedachalam is a member of, and seeks to represent, the National Employee Class. 15-. The members of the National Employee Class identi?ed herein are so 494361.11 - 3 - (sass ACTION coMPLamr son RELIEF aim.? . Documentl-l Filed02/14/06 Page5 of 23 numerous that joinder of all members is impracticable. At the end of 2005, Defendants employed thousands of non-U.S.-citizen employees in the United States. Although the precise number of employees affected by the illegal practices alleged herein is currently unknown, it is far greater than can be addressed feasibly through joinder. The precise number is ascertainable from Defendants? records. 16'. There are many questions of law and fact common to the National Employee Class, and these questions predominate over any questions affecting only individual members. Common questions of-fact or law include, among others: whether Plaintiff and the proposal class have a right to their individual tax refund checks; (2) whether Defendants unlawftu compelled the Plaintiff and the proposed class to tum over those refund checks to (3) whether Defendants exerted an act of ownership or dominion over the personal property of the Plaintiff and the proposed Class; (4) whether, by signing over their refund checks to TCS, Plaintiff and the proposed Class conferred a benefit to Defendants; whether Defendants were aware of the bene?t they received; (6) whether Defendants have retained this bene?t under circumstances that make it inequitable for Defendants to retain the bene?t without the payment of its value; (7) whether Defendants had a systematic plan to breach the contracts of their citizen employees; and (8) whether injunctive relief and other equitable remedies (includin restitution) and compensatory and punitive damages are warranted for the National Employee Class. 17. The claims of Proposed Representative Plaintiff vedachalam are typical of the claims of the National Employee Class. 18- Plaintiff Vedachalam will fairly and adequately represent and protect the interests of the members of the National Employee Class. Plaintiff?s counsel is competent and highly experienced in complex class actions. 19- Class certi?cation is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because TCS has acted andfor refused to act on grounds generally applicable to the National Employee Class, making appropriate declaratory and injunctive relief with respect to Plaintiff Vedachalam and the National Employee Class as a whole. The law entitles members of the 4943614 4 - cuss ACTION COMPLAM non REIJEF EKG Documentl-l :Filed02/14/06 Page6 of 23 National Employee Class to injunctive relief, including restitution of the pro?ts Defendants have unlawfully acquired and retained through their illegal acts. 20. Class codi?cation is also appropriate pursuant to Fed- R. Civ. P. because common questions of fact and law predominate over any individual questions affecting members of the National Employee Class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. The members of National Employee Class have been damaged and are entitled to recovery as a result of Defendants? I common, uniform, and illegal policies and practices. Defendants have computerized payroll and personnel data that will make calculation of damages for specific members of the National Employee Class relatively straightforward. B. California Employee Subcl_a_s_s 21. Plaintiff Vedachalam is a member of, and seeks to represent, the California Employee Subclass. 22. The members of the California Employee Subclass are so numerous that joinder of all members is impracticable. At the end of 2005, Defendants employed hundreds of employees throughout California. Although the precise number of California employees affected by the illegal practices alleged herein is currently unknown, it is far greater than can be feasibly addressed through joinder. The precise number is easily ascertainable from Defendaan records. . aamrl . .. - -.1 23. "um-n - There are many questions of law and fact common to the proposed California Employee Subclass, and these common questions predominate over any questions affecting only individual members. Common questions of fact or law include, among others: (1) whether Defendants compelled its California employees to repay wages already earned; (2) whether Defendants refused to reimburse its California employees for vested vacation time; (3) whether Defendants failed adequately to pay its dismissed California employees within 72 hours of those class members? tenninations from the company; whether Defendants willfully failed to provide its California employees with accurate, itemized stawments of their wages; (5) whether the law entitles Plaintiff and the proposed Subclass to restitution of all unjust 5 - CLASS nono? COMPLAINT renames 494361 .4 . .-.Documentl-l Filed02/14/06 Page? of 23 enrichment Defendants have enjoyed from Defendants? alleged violations of the California Labor Code. 24. The claims of Proposed Representative Plaintiff Vedachalam are typical of the claims of the California Employee Subclass. 25. Plaintiff Vedachalam will fairly and adequately represent and protect the interests of the members of the California Employee Subclass. Plaintiff?s counsel is competent and highly experienced in complex class actions. 26. Class certi?cation is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because Defendants 'have acted andfor refused to act on grounds. generally applicable to the California Employee Subclass, making appropriate declaratory and injunctive relief with respect to Plaintiff Vedachal am, and the proposed California Employee Subclass as a whole. The law entitles the members of the California Employee Subclass to injuncti ve relief to end Defendants? common, uniform, and illegal practices, including restitution of the pro?ts Defendants have acquired through its illegal acts. 27. Class certi?cation is also appropriate pursuant to Fed. R. Civ. P. 23(b)(3) because common questions of fact and law predominate over any questions affecting only individual members of the proposed California Employee Subclass, and because a class action is superior to other available methods for the fair and efficient adjudication of this Litigation. and the law entitles the proposed California Employee Subclass to recovery as a result of Defendants? common, uniform, and illegal practices. Defendants have computerized payroll and personnel data that will make calculation of damages for speci?c members of the proposed California Employee Subclass relatively straightforward. STATEMENT OF FACTS APPLICABLE TO ALL CLAMS A. Deputatiou of Its Employees to t_lie United States. 28. Most TCS employees in the United States are non?US- citizens. Most of these individuals have worked for in India and are ?deputed? to work in the-United States, meaning that the employees continue to work for TCS, but are stationed in the United States. 1' 4943514 - 6 - cuss acnon comma" eon RELIEF practices have damaged the of the proposed California Eniployee Subclass, . r, Ins-uncann? CaSe4:06-cv-00963-CW Documentl-l Filed02/14/06 Page8 of 23 1 29. Each employee signs a Deputation agreement that outlines the terms and 2 conditions of his or her employment in the United States. 3 30. These employees are granted visas, which allow the employees to work 4 and live in the United States. 5 31. The Deputation agreements state that the employee?s gross amount of 6 compensation shall be includable as earnings in the United States and reported to the U.S. Internal 7 Revenue Service- 3 32. The Deputation Agreements state that addition to the compensation 9 and benefits you currently receive and will continue to receive in India while on Deputation, you 10 shall receive additional compensation in the United States in the gross amount of" a certain 11 number of dollars. 12 33. While in the United States, these employees are paid by TCS, Ltd, through 13 Tata America International. 14 B. 15 34. Plaintiff has been employed by Defendant TCS since 1997. 16 35. - TCS is the information technologies outsourcing/consulting arm of the 17 Indian conglomerate Tata Group. Tata America is a U.S. subsidiary of TCS. Tata America has 18 branch of?ces throughout the United States, including, but not limited to, Arizona, California, 19' Connecticut, Colorado, Florida, Illinois, Indiana, Kentucky, .ri 20 New York, New Jersey, Texas, Washington, WiSconsin. 21 36. On information and belief, Plaintiff alleges that Tata America and TCS 22 employ most of the National Employee Class as consultants that work on-site with other U.S. 23 - businesses. 24 CLASS ALLEGATIONS 25 1. NATIONAL EMPLOYEE CLASS 26 37. At least until July 2005, Defendants required that their 27 employees sign power of attorney agreements that delegate an outside agency to calculate and 28 submit each employee?s tax returns to the applicable state and federal tax authorities. 49:35] - 7 - crass acnon (rostrum non RELIEF Documentl-l Filed02/14/06 Page9 of 23 38- Each year that Plaintiff worked for Defendants in the United States, he has had to sign power-of?attorney agreements,-delegating an outside agency to calculate and submit his state and federal tax returns. 39. On information and belief, Plaintiff alleges that during each year of the class period, each National Employee Class member received a state and. federal tax refund check, representing the amount of taxes they had overpaid the state and federal tax agencies. 40. Each year that Plaintiff worked for Defendants in the United States, the Internal Revenue Service and California Franchise Tax Board sent to Defendants checks made' cut to Plaintiff representing the amount of tax he overpaid throughout the preceding year- Each year that Plaintiff Gopi Vedachalam has worked for Defendants in the United States, Defendants have required him to endorse his tax refund checks and send those checks back to the company. In 2004, for example, TCS sent Vedachalam an ?Urgent Memo? that stated: ?Thank you very much for your excellent support in assisting us to file the tax return on your behalf for the year [current year]- We are now forwarding you the tax refund check received from the Tax Authority. Please sign on the reverse of the cheque and return it to the below mentioned address. Your assistance in the [sic] regard will be highly appreciated.? - 41. On information and belief, Plaintiff alleges that when Defendants received these tax refund checks from the respective tax agencies, made out to each of their non-US.- I citizen employees, they sent their employeesan-atUrgent Memo,? demanding that the employees endorse the checks and send them back to Defendants. 42. On information and belief, Plaintiff alleges that Defendants have retained the proceeds from the National Employee Class members' tax refund checks. Defendants have not repaid these funds to their employees. 43. On information and belief, Plaintiff alleges that Defendants have taken the proceeds from Plaintiff?s state and federal tax refunds for each year that Vedachalam has worked in the United States. Defendants have never repaid Vedachalam the tax refund money that they required Plaintiff to sign over to them. I 44. On information and belief, Plaintiff alleges that Defendants have received 49434514 - 3 - mass non sauna Documentl-l Filed02/14/06 PagelO of 23 as much as $5,000 per year, per employee as a result of Defendants' requirement that each National Employee Class member sign over his or her tax refund checks to Defendants. 45- Plaintiff estimates that Defendants have retained nearly $25,000 in federal and state tax refunds that rightfully belong to him. 46. On information and belief, Plaintiff alleges further that Defendants have failed to comply with the terms of their employment contracts with their employees by failing to pay the full, additional compensation in the United States as promised in these agreements. II. CALIFORNIA EMPLOYEE SUBCLASS 47. By requiring that their non-U.S.-citizen employees sign over their tax refund checks to the company, Defendants require that these employees repay wages those employees had previously earned- 48. Plaintiff estimates that Defendants have required him to return to Defendants nearly $25,000 in earned wages. On information and belief, Plaintiff alleges that Defendants have required each member of the California Employee Subclass to return similar amounts to Defendants. 49. TCS'gives both US. citizen and employees 15 vacation days a year. All employees can carry over only ?ve unused days to the following year. At least until 2005, although U.S. citizen employees could eash~in unused vacation days in excess of the ?ve "days carried over, could notcashgintheir. unused vacation days and were required to forfeit any unused vacation days beyond the ?ve carried over without any compensation. 50. Defendants have never paid Plaintiff Vedachalam for vacation days he has forfeited because he had greater than five vacation days remaining at the end of the year. 51. On information and belief, Plaintiff alleges that Defendants have failed adequately to compensate their dismissed California employees for all of the vacation time they earned but didnot use. 52. While working inI-the United States- for Defendants, Mr. Vedachalam- has not been provided with accurate wage statements. The statements TCS provided misstated his 4943614 9 Documentl-l Filed02/14/06 Pagell of 23 gross income and net income because the statements-did not account for the wages Defendants required Mr. Vedachalam to return to them. Moreover, Defendants regularly changed the number of exemptions listed on Plaintiffs? wage statements without informing Plaintiff of the change, the reasons for the change, or its consequences. 0n information and belief, Plaintiff alleges that other members of the California Employee Subclass similarly did not receive accurate, itemized wage statements- 53. By not accounting for the tax refunds that TCS required its employees return to TCS, TCS has willfully refused to provide its employees with accurate wage statements. FIRST CLAIM FOR RELIEF CONVERSION (by Plaintiff on behalf of himself and the National Employee Class) 54. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 55. Plaintiff brings this claim on behalf of himself andthe proposed National Employee Class. 56. The class period for the proposed National Employee Class is from February 14, 2000 through the date of judgment. 57. The tax refund checks TCS required its employees to return to the company represent the difference between the amount of the employees? earnings that was withheld for taxes thE?nEtmtof fares actually owed. Plainti? and National Employee members, therefore, have the right to receive and retain their federal and state income tax refund checks- 53. By requiring that each class member sign over their state and federal income tax refund check to Defendants, Defendants have intentionally taken dominion and control over Plaintiff and National Employee Class members? tax refund checks. 59. Defendants? actions seriously interfere with Plaintiffs and proposed National Class Members? rights to control and use their federal and state income tax refund checks. . . 60. Defendants? actions have caused Plaintiff and the proposed National Class 4943614 - 10 crass ACTION COMPLAINT non RELIEF Case4:06-cv-OO963-CW Documentl-l Filed02/l4/06 Page12 of 23 Members signi?cant ?nancial injury. Defendants? alleged conversion of Plaintiff?s and proposed National Class Members? state and federal income tax refund checks has deprived each class member of as much as thousands of dollars per year- 61. Defendants? conduct as alleged above constitutes conversion, as articulated by the Restatement (Second) of Torts, the laws of New York (Tata America?s state of incorporation and principal place of business), and, in the alternative, the laws of California. 62- Plaintiff requests relief as provided in the Prayer for Relief below- SECOND CLAIM FOR RELIEF BREACH OF EMPLOYEE CLASS (by Plaintiff on behalf of himself and the National Employee Class) 63. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 64. Plaintiff brings this claim on behalf of himself and the proposed National Employee Class. 65. The class period for the proposed National Employee Class is from February 14, 2000 through the date of judgment. 66. By failing to pay National Class Members the amount of additional compensation provided in their Deputation Agreements, Defendants breached those contracts. Defendants? breach of the terms of their contracts with the members of the IMHiu-Hm-n-s-swvhu-s- W?h? .. ljation?g gass'entitles thosemembers to restitntion and recovery of all damages caused by Defendants? nonperfonnance. 68. It is inequitable for Defendants to retain the funds promised to the proposed National Employee Class Members- I 69. Defendants? conduct as alleged above establishes a claim for breach of contract, as articulated by the Restatement (Second) of- Contracts, the laws of New York ('l?ata America?s state of incorporation and principal place of business) and, in the alternative, the laws of California. 70. Plaintiff requests: relief as provided in the Prayer for Relief below. 4943614 11- - crass sorrow common? son swan ?ail-I?lth Documentl-l Filed02/14/06_ Page13 of 23 THIRD CLAIM FOR RELIEF UN UST EMPLOYEE CLASS (by Plaintff on behalf of himself and the National Employee Class) '71. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 72. Plaintiff brings this claim on behalf of himself and the proposed National Employee Class. 73. The class period for the proposed National Employee Class is from February 14, 2000 through the date of judgment. 74. By endorsing and sending their federal and state income tax refund checks to Defendants, each proposed National Employee Class member conferred a substantial bene?t upon Defendants each year, worth as much as thousands of dollars per Class member. 75. By requiring each member of the proposed National Employee Class to sign tax refund check over to Defendants and submit the checks to them, Defendants knew of and fully appreciated the bene?t they were receiving. 76. It is inequitable for Defendants to retain tax refunds that rightfully belong .to the preposed. National Employee Class Members. 77. By breaching their contracts with the National Employee Class members in a way that allowed TCS to retain funds that rightfully belonged to the class members, each National Employee Class member has conferred a substantial bene?t to the Defendants. 78. contracts withufhe Flanonal Employee Class members in . a way that allowed TCS to retain funds that rightfully belonged to the class members, Defendants lmew of and fully appreciated the benefit they were receiving. I 79. It is inequitable for Defendants to retain the funds that rightfully belong to the proposed National Employee Class Members. 80.? Defendants? conduct as alleged above establishes a claim for unjust enrichment, as articulated by the Restatement (Third) of Restitution and Unjust Enrichment, the laws of New York (Tata America?s state of incorporation and principal place of business) and, in the alternative, the laws of California. 49436] .4 - 12 - crass senor: comman- non RELIEF 5?3 25 26 27 23. Documentl-l Filed02/14/06 Page14 of 23 81- Plaintiff requests relief as provided in the Prayer for Relief below. CAUSES OF ACTION UNDER OTHER LAWS 82. Formal discovery in this case has not yet begun, and Plaintiff has not had access to information that will allow him to know with certainty which State?s (or States?) law of conversion, unjust enrichment, and contracts governs Defendants? conduct. Plaintiffs are informed and believe that the conversion, unjust enrichment and contract law of New York andfor California shall govern here. To the extent that discovery reveals that another State's law governs the conduct of Defendants? in this controversy, Plaintiff alleges causes of action for conversion, unjust enrichment, and breach of contract under any State?s law based on the allegations that Defendants" conduct constituted conversion, unjust enrichment and breach of contract as articulated by the Restatement (Second) of Torts, the Restatement (Third) of Restitution and Unjust Enrichment, and the Restatement (Second) of Contracts. To the extent that discovery reveals that another State's (or States?) law of conversion and unjust enrichment governs, Plaintiffs will seek leave to amend to allege causes of action under such State?s (or States') law. FOURTH CLAIM FOR RELIEF VIOLATION OF CAL. LABOR CODE 221 (by Plaintiff on behalf of himself and the California Employee Subclass) 83. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. - . -. Employee Subclass. 85. The class period for the California Employee Subclass is from February 14, 2002 to the date of judgment in this action. 86. . Pursuant to Caiifomia Labor Code 221, ?It shall be unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee.? Pursuant to California Labor Code ?All protections, rights, and remedies. available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for 4943514 - 13 crass notion comer-Jinn FDR RELIEF __Pl_aintiff brings this claim on behalf of himself and the - . . N_t?t r?I .lDocumentl-l Filed02/14/06 Page15 of 23 employment, or who are or who have been employed, in this state-? 88. Defendants? conduct as alleged above constitutes a violation of California Labor Code 221, because by requiring Plaintiff and proposed California Subclass members to sign over their tax refunds, Defendants required Plaintiff and the proposed California Employee Subclass to return to Defendants a substantial part of the wages paid by Defendants to them- 89. Plaintiff requests relief as provided in the Prayer for Relief below. FIFTH CLAIM FOR RELIEF VIOLATION OF CAL. LABOR CODE 201?203 (by Plaintiff on behalf of himself and the California Employee Subclass) 90. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 91- Plaintiff brings this claim on behalf of himself and the proposed California Employee Subclass- 92. The class period for the California Employee Subclass is from February 14, 2002 to the date of judgment in this action. 93. Pursuant to California Labor Code 201(a), ?If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.? I 94- Pirrsuant to California Labor Code 202 ?If an employee not having a - written contract for a definite period quits his or her employment, his. or her wagesshall become 1 due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting-? 95. Pursuant to California Labor Code 203, ?If an employer willfully fails to pay, without abatement or reduction, in accordance Sections 201, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.? 96. Pursuant to Califtmria?Labor Code ?All protections, rights, 4943514 14 crass armors comman- roa RELIEF Documentl-l Filed02/14/06 Page16 of 23 and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.? 97. Defendants? conduct as alleged above constitutes a violation of California Labor Code 201 through 203, because TCS failed to pay the entirety of dismissed class members? wages within 72 heurs of dismissal. Speci?cally, Defendants required Plaintiff and California Employee Subclass members to pay over their tax refund checks, and Defendants retained this money and did not pay it back upon the employees? termination. 98. Plaintiff requests relief as provided in the Prayer for Relief below. SIXTH CLAIM FOR RELIEF VIOLATION OF CAL. LABOR CODE 226 1174 (by Plaintiff on behalf of himself and the California Employee Subclass) 99. Plaintiff hereby incorporates by reference the allegations contained in all paragraphs of this complaint. 100. Plaintiff brings this claim on behalf of himself and the California Employee Subclass. 101. The class period for the California Employee Subclass is from February 14, 2002 to the date of judgment in this action. 102. Pursuant to California Labor Code 226(a), ?Every employer shall, .emon??v or at the time ?1?5th Payment. 9? use anew: as a detachable part of the check, draft, or voucher paying the employee?s wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing (1) gross wages earned, . . . (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, . . . . The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on ?le by the employer for at least three years at the place of employment or at a central location within the State of California." 103. Pursuant to California Labor Code 1174(d), employers shall keep ?at a 4943614 - 15 - ms action COMPLAINT non RELIEF Case4:06-cv-OO963-CW Documentl-l Filed02/14/06 Pagel? of 23 1 central location in the state or at die plants or establishments at which employees are employed, payroll records showing the hours worked daily by and the wages paid to, and the number of piece-rate units earned by and any applicable piece rate paid to, employees employed at the respective plants or establishments.? 104. Pursuant to California Labor Code ?All, protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.? 105. The conduct alleged in this complaint constitutes a violation of California MD 10 Labor Code 226 and 1174, as Defendants'failed adequately to provide accurate itemized wage 11 statements to Plaintiff and the proposed California Subclass Members? wages. Defendants 12 routinely changed the number of tax exemptions without ?rst obtaining the consent and approval 13? of the Plaintiff, and the California Employee Subclass. The wage statements Defendants provided 14 to the class members did not accurately re?ect the employees? gross or net wages, as they failed 15 to discount the employees? tax refund checks that Defendants required the employees to return to 16 the company. 17 106. . Plaintiff requests relief as provided in the Prayer for Relief below. 13 SEVENTH CLAIM FOR RELIEF VIOLATION OF CAL. LABOR CODE 218.5, 227.3, and 201-203 . . 0.13: 20 10?. Plaintiff hereby incorporates by reference the allegations contained in all 21 preceding paragraphs of this complaint. 22 108. This claim is brought on behalf of Plaintiff Vedachalarn and the California 23 Employee Subclass. 24 109. The class period for the California Employee Subclass is from February 14, 25 2002 to the date of judgment in this action. 26 110. Pursuant to California Labor Code 227.3, "Unle5s otherwise provided by 27 a collective-bargaining agreement, whenever a contract of employment or employer policy 28 provides for paid vacations, and an employee is terminated without having taken off his vested 49436? - 16 crass RELIEF atom LII Documentl-l Filed02/14/06 Page18 of 23 vacation time, all vested vacation shall be paid to him as wages at his ?nal rate in accordance with such contract of employment or employer policy respecting eligibility or time served; provided, however, that an employment contract or employer policy shall not provide for forfeiture of vested vacation time upon termination. The Labor Commissioner or a designated representative, in the resolution of any dispute with regard to vested vacation time, shall apply the principles of equity and fairness.? 111. Pursuant to California Labor Code 218.5, ?In any action brought for the nonpayment of wages, fringe bene?ts, or health and welfare or pension fund contributions, the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action.? 112. Pursuant to California Labor Code ?All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who-are or who have been employed, in this state." 113. Pursuant to California Labor Code 201(a), ?If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable - immediately.? 114. Pursuant to California Labor Code 202 ?If an employee not having a writtert contract. or her employment, his wages. shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting." 115. Pursuant to California Labor Code 203, ?If an employer willfully fails to pay, without abatement or reduction, in accordance?with Sections 201, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue formore than 30 days.? 116. The conduct alleged in this complaint constitutes a violation of California 4943614 - l7 - cams Am com non sauna proper records, as alleged herein, constitute unlawful activities prohibited by Business and . Professions Code 17200, et seq. Plaintiffs and the proposed class. Documentl-l Filed02/14106 Pagel9 of 23 Labor Code 201, 202, 203, 218.5, and 227.3, because Defendants? forfeiture of vested but unused vacation pay, as alleged above, constitutes an unlawful ?use?it-or-lose-it? vacation policy. TCS did not reimburse its terminated employees with the vacation time they had accrued. 11?. Plaintiff requests relief as provided in the Prayer for Relief below. EIGHTH CLAIM FOR RELIEF VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE 17200 (by Plaintiff on behalf of himself and the proposed California Employee Subclass) 113. Plaintiff hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint. 1 19- Plaintiff brings this claim on behalf of himself and the proposed California Employee Subclass- 120. The class period for the California Employee Subclass is from February 14, 2002 to the date of judgment in this action. .121. Defendants? violations of California Labor Code 201-203, 221, 226, 227.3, and 1174, as alleged above, constitute unlawful business acts or practices. 122.. Defendants? failure to pay wages as alleged herein to Plaintiffs and members of the proposed classes under Califomia Labor Code, and Defendants? failure to keep I I23.- The actions of in failing to pay Plaintiffs and members of the proposed class in a lawful manner, as alleged herein, constitute false, unfair, fraudulent and deceptive business practice, within the meaning of Business and Professions Code 17200, et seq. I I 124. Defendants? conduct as alleged herein has damaged Plaintiffs and proposed class members by wrongfully failing to pay them all wages due upon termination of employment, and. by failing to provide itemized wage statements. Such conduct was substantially injurious to 125. Under the circumstances alleged herein, it would beinequitable and result in a miscarriage of justice for Defendants to continue to retain the property of Plaintiffs and if 4943614 18 cuss ACTION COMPLAINT FDR RELIEF - 00 Ch DJ r?I 1?4- l?t l-Documentl-l Filed02/14/06 Page20 of 23 proposed class members, entitling Plaintiffs and proposed class members to restitution of the unfair bene?ts obtained and dis gorgement of Defendants? ill- gotten gains. 126. As a result of Defendants? unlawful business acts or practices, Defendants have reaped and continue to reap unfair bene?ts andillegal pro?ts at the expense of Plaintiff and the proposed California Employee Subclass. 127. Defendants? improper, unfair and unlawful business practices and acts alleged herein constitute a continuing threat to Plaintiff, Subclass members, and members of the public in that, unless restrained, Defendants may' continue to violate California Labor law. Pursuant to Business and Professions Code 17203, Plaintiff, on behalf of himself, the Plaintiff Class, and the general public, seeks a permanent injunction requiring Defendants to cease its unlawful and unfair business practices and acts. 123- As a direct and proximate result of the aforementioned practices and acts, Defendants have been unjustly enriched, and Plaintiff, the proposed Caiifomia Employee Subclass, and the general public are entitled to restitution in an amount to be determined at trial. 129. Plaintiff requests relief as provided in the Prayer for Relief below. RELIEF AILLEGATIONS 130. Plaintiff and the classes he seeks to represent have no plain, adequate, or complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in Mug?4.: seeks to represent are now suffering and will continue to suffer irreparable injury from many! illegal acts. 131. 1 The actions on the part of Defendant have caused and continue to cause Plaintiff and the proposed classes substantial losses in earnings, other compensation, and other employment bene?ts, in an amount to be determined according to proof. 1 132. Defendants acted or failed to act herein alleged with malice or reckless indifference to the protected rights of Plaintiff Vedachalam and members of the proposed classes. . Plaintiff 1lrl'edachalatn and members of the proposed classes are thus entitled to recover punitive damages in an amount to be determined according to proof. 494361.4- - 19 cmssacrrm 's action is the only means of securing complete and adequate relief. Plaintiff and the classes he smotst Documentl-l Filed02/14/06 Page21 of 23 PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and the proposed classes, prays for relief as follows: 1. Certi?cation of the case as a class action on behalf of the preposed Plaintiff classes, and designation of Plaintiff as representative of the classes and his counsel of record as Class Counsel; 2. Damages and equitable relief for all harm the individual Plaintiff and the classes have Sustained as a result of Defendants? conduct, according to proof; 3- Exemplary and punitive damages in an amount commensurate with Defendants' ability to pay and to deter future unlawful conduct; 4. A preliminary and permanent injunction against Defendants and their directors, of?cers, owners, agents, successors, employees, and representatives?and any and all persons acting in concert with them?from engaging in each of the unlawful practices, policies, customs, and usages set forth herein; 5. A declaratory judgment that the practices complained of in this complaint are unlawful and violate applicable federal and state law. 6. Costs incurred, including reasonable attorneys? fees, to the extent allowable by law; 7. Pre?Judgment and Post-Judgment interest, as provided by law; and 8. Such other and further legal and equitable relief as this Court deems necessary, just, and proper. 49436IJ - 20 - cuss muem?; Documentl-l Filed02/14/06 Page22 of 23 Dated: February 14, 2006 491861;! LIEFF, CABRASER, HEIMAN BERNSTEIN, LLP M. Tindall James M- Finberg (State Bar No. 114850) Steven M. Tindai] (State Bar No. 187362) Peter E. Ieckman {State Bar No. 235721) LIEFF, CABRASER, HEIMANN 8.: BERNSTEIN, LLP Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956?1000 Facsimile: (415) 956?1003 Counsel for the Ptainn?? - 21- Documentl-l Filed02/14/06 Page23 of 23 DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial as provided by Rule 38(a) of the Federal Rules of Civil Procedure. Dated: February 14, 2006 494361 .4 IIEFF, CABRASER, HEMANN 8t BERNSTEIN, LLP Bv: GI James M. Finberg? (State Bar No- 114850) Steven M. Tindall (State Bar No- 187862) Peter E. Leckman (State Bar No. 235721) LIEFF, CABRASER, I-IEMANN St BERNSTEBNI, LLP Embarcadero Center West - 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Counseifor the Pinioncuss acnon comm-{M FOR RELIEF