LAW OFFICE OF TEL (650)616-4144 ALLAN A . VILLANUEVA MEMBER OF THE BARS FAX (650) 479?3086 1001 BAYHILL DRIVE CALIFORNIA AND HAWAII SUITE 200 SAN BRUNO, CALIFORNIA 94066 VIA CERTIFIED MAIL 32?? RECEIVED DEPT.0F INDUSTRIAL RELATIONS California Labor Workforce Development Agency JUL 1 6 20M Attn. PAGA Administrator LABOR STANDARDS ENFORCEMENT 455 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 July 15, 2014 8L Middleton Residential Care, Inc.; Norma Middleton,- Roy Middleton; Julieta Extra; and Jeatte Villarente Robyn Callahan, Esq. Joseph and Cohen 1855 Market Street San Francisco, CA 94103 RE: Complaint under Labor Code 2698 et seq. (Private Attorneys General Act of 2004) To Whom It May Concern: This office represents OSCAR JEROME ALBERT MARIA CRISTINA SANDY DE ROMEO G. DELA MARK ANTHONY SALVACION ROGELIO CARLOTA DE ARLENE ERWIN JEROM CHERYL MARILYN ROSEMARIE and EMILIO TUASON, JR. Please direct all communications to this office. They are aggrieved employees and are making claims under Cal. Labor Code ?2698 et seq. on behalves of himself or herself and other current or former employees including, but not limited to: Prescilla Corpus, Elizabeth David, Rosalinda de Vera, Lolita Ederon, Analyn Magalong, Elvira Maniti, Sonny Manuel, Nestor Nicolas, Rosalinda Nieva, Christine Ortega, Ronald Salipan, Ramon Silva, Myrna Slatten, Juliana Taylor, Kevin Baysac, Dwight Baysac, Aproniano Sadarisos, Andres Maceda, Luz Dayap, Ditas (last name unknown), Barbara, Madeline (last name unknown), Alexander Rabulan, Kai Lee, Maribel Zumel and Gerard Sison. The aggrieved employees work(ed] as caregivers at seven community care facilities or residential care facilities for the elderly. The facilities are licensed by the Community Care Licensing Division of the Department of Social Services of State of California, and were operated, established, managed, conducted or maintained by the following employers or other person acting on behalf of the employers: Middleton Residential Care, Inc.; Christian Care Concept, Norma Middleton; Roy Middleton; Julieta Extra; Ieatte Villarente; Michael Iose Torio; and Marilyn Patacsil. The names and addresses of the facilities, with their corresponding facility capacities are as follows: 1. 8: Middleton Residential Care #1 2211 Tice Valley Blvd. Walnut Creek, CA 94595 Facility Capacity: 6 2. Middleton Residential Care #2 1212 Lindell Drive Walnut Creek, CA 94596 Facility Capacity: 6 Complainants are informed that this facility has since been closed and/0r sold 3. 8L Middleton Residential Care #3 2206 Tice Valley Blvd. Walnut Creek, CA 94595 Facility Capacity: 6 4. Middleton Residential Care #4 11 Freeman Court Walnut Creek, CA 94595 Facility Capacity: 6 5. Middleton Residential Care #5 2203 Tice Valley Blvd. Walnut Creek, CA 94595 Facility Capacity: 6 6. Middleton Residential Care #6 1200 McEwing Court Concord, CA 94521 Facility Capacity: 6 7. Solano Life House 575 S. Jefferson Street Dixon, CA 95620 Facility Capacity: 38 The aggrieved employees allege that the employers and/ or other person acting on behalf of the employers violated the following labor code violations: Cal. Labor Code ??510, 1194, 1198. Each aggrieved employee?s regular rate of pay was between $75.00 to $95.00 per day. Cal. Labor Code Section 515(b) (2) states, ?Payment of a ?xed salary to a nonexempt employee shall be deemed to provide compensation only for the employee's regular, nonovertime hours, notwithstanding any private agreement to the contrary.? Therefore, each employee's regular rate of pay was between $9.38 to $11.88 per hour. The aggrieved employees were hired as live-in caregivers. Each of them generally worked five days per week, sixteen or more hours per day. Their day began at about 5:30 a.m. and lasted until 10:00 pm. However, throughout the night from 10:00 pm. to 5:30 the caregivers would be required to monitor and answer the calls and requests of the residents. The employees were therefore required to be on the premises. Indeed, it was the policy and practice of the employers and those who acted on their behalves. Each facility had at least one caregiver at the facility at all times. A couple of the facilities frequently only had one caregiver working. When the census of the facility reached its capacity, six at Middleton Residential Care facilities #1 to there would generally be at least two caregivers. The regulations governing residential care facility state: The following persons providing night supervision from 10:00 pm. to 6:00 a.m. shall be familiar with the facility's planned emergency procedures, shall be trained in first aid as required in Section 87465, Incidental Medical and Dental Care Services, and shall be available as indicated below to assist in caring for residents in the event of an emergency: In facilities caring for less than sixteen (16) residents, there shall be a qualified person on call on the premises.ln facilities caring for less than sixteen (16) residents, there shall be a qualified person on call on the premises." 22 Cal. Code of Regs. ?87415(a) [underlining added). Thus, it was not only because it was the policy and practice of the employers to require the employees to be on the premises, but also it was required by law. The hours when the employees were required to be on the premises are considered ?hours worked.? Morillion V. Royal Packing C0. (2000) 22 Cal.4th 575,589; 29 CPR. ?778.223. The aggrieved employees were paid for only eight hours, when in fact, they worked at the very least sixteen hours and frequently up to twenty or more hours per day. They were not paid for hours worked at the required overtime rate as set forth below in excess of eight hours per day or forty hours per week. Labor Code Section 1194(a] states, ?Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit.? Labor Code Section 1198 provides that the employment of any employee for longer hours than those fixed by the applicable wage order or under conditions of labor prohibited by the wage order is unlawful. Industrial Welfare Commission Wage Order No. 5-2001, which regulates the wages, hours and working conditions of employees working in the ?Public Housekeeping Industry,? including the residential care facility where plaintiffs worked, was applicable to and controlled plaintiffs' employment with defendants. Labor Code Section 510 and Section of Wage Order o. 5-2001 provides in pertinent part that any employee who works more than 8 and up to 12 hours in one workday, and more than 40 hours in one workweek, and who works the first 8 hours on the seventh consecutive day of work in a workweek, shall be paid one and one-half (1 1/2) times the employee?s regular rate of pay. In addition, any employee who works more than 12 hours in one workday, and who works more than 8 hours on any seventh day consecutive day of work in a workweek shall be compensated at the rate of no less than twice the employee?s regular rate of pay. In sum, the employers and those acting on their behalves violated Cal. Labor Code ??510, 1194, 1198. Cal. Labor Code ?1197.1. Based on the same facts set forth above, the employers or other person acting individually or as an officer, agent or employee paid or caused to be paid a wage less than the minimum fixed by an order of the commission. Therefore, the aggrieved employees seek penalties as set forth in the Labor Code. Cal. Labor Code ?1197.1 provides, Any employer or other person acting either individually or as an officer, agent, or employee of another person, who pays or causes to be paid to any employee a wage less than the minimum fixed by an order of the commission shall be subject to a civil penalty, restitution of wages, and liquidated damages payable to the employee, as follows: For any initial violation that is intentionally committed, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee is underpaid. This amount shall be in addition to an amount sufficient to recover underpaid wages and liquidated damages pursuant to Section 1194.2. (2) For each subsequent violation for the same specific offense, two hundred fifty dollars [$250) for each underpaid employee for each pay period for which the employee is underpaid regardless of whether the initial violation is intentionally committed. This amount shall be in 4 addition to an amount sufficient to recover underpaid wages and liquidated damages pursuant to Section 1194.2. Wages and liquidated damages recovered pursuant to this section shall be paid to the affected employee. Cal. Labor Code 1102.5. In addition to the facts set forth above, on or about November 19, 2013, aggrieved employees were interviewed by representatives of the Wage and Hour Division of the U.S. Department of Labor. On April 15, 2014 and lune 23, 2014, some of the aggrieved employees filed claims in Contra Costa County superior court alleging among other things, wage and hour violations, retaliation, and Business and Professions ?17200 et seq. violations. Thereafter, the employers and those acting on their behalves began to retaliate against the aggrieved employees by: 1. reducing the work hours and work days of the aggrieved employees (the hours of all of the seventeen employees whose names are in upper case above have been reduced), to the point that some were removed completely from the work schedules effectively resulting in the employees? termination; and replacing them with newly-hired employees. (Some of these newly-hired employees are named above, such as Kevin Baysac, Dwight Baysac, Aproniano Sadarisos, Andres Maceda, Luz Dayap, Ditas (last name unknown), Barbara, Madeline (last name unknown), Alexander Rabulan, Kai Lee, Maribel Zumel and Gerard Sison. These employees are also aggrieved employees themselves as the employers and those acting on their behalves have committed the same violations, e.g. failure to pay overtime wages, against these newly-hired aggrieved employees); 2. not accommodating the employees? requested days off Salvacion Awa-Ao requested a vacation, and was required to sign a statement. Upon her return from vacation, her hours had been reduced substantially); 3. contrary to the prior practice of the employers and those acting on their behalves, forcing the employees to sign a statement to the effect that if their days off requests were granted, there was no guarantee that they would be given a work schedule upon their return. This was done as a pretext of accommodating the employees? days off but really to cover up the retaliatory motives of the employers and those acting on their behalves Salvacion Awa-Ao requested a vacation, and was required to sign a statement, contrary to previous practice. Upon her return from vacation, her hours had been reduced substantially); 4. having aggrieved employees or threatening to have aggrieved employees blacklisted in the industry Marilyn Patacsil did this on or about December 27, 2013 in a meeting attended by no fewer than eighteen employees all whose names are stated above); 5. making false accusations against employees Ueatte Villarente admitted that this is what the employers and those acting on their behalves are intending to do); 6. setting them up for discipline and/or termination (Ieatte Villarente admitted that this is what the employers and those acting on their behalves are intending to do); 7. threatening to contact or report, or contacting or reporting to immigration authorities aggrieved employees? immigration status Marilyn Patacsil did this on or about December 27, 2013 in a meeting attended by no fewer than eighteen employees all whose names are stated above]; 8. disturbing and/or otherwise harassing aggrieved employees on their days off. Julieta Extra harassed Marilyn Tiongson on June 28, 2014]. 9. controlling aggrieved employees actions even on their purported days off Iulieta Extra did this to Marilyn Tiongson on June 28, 2014).; 10. preventing aggrieved employees even on their days off and in their personal sleeping quarters from packing personal items intended for relatives in the Philippines. Iulieta Extra did this to Marilyn Tiongson on June 28, 2014). 11. removing the work schedules of those who took leaves under the Family Rights Act, Family Medical Leave Act Emilio Tuason had to take FRA FMLA leave and upon his return his hours were drastically reduced); 12. disciplining them for false reason or no reason or otherwise no good reason Julieta Extra did this to Marilyn Tiongson); and 13. violating the privacy rights of the aggrieved employees by demanding to inspect the personal belongings of the aggrieved employees Norma Middleton did this to Marilyn Tiongson, Erwin Lebitania, and Lolita Ederon). The conduct of the employers and those acting on their behalves is retaliatory and in violation of California Labor Code 244, 1102.5, among others. According to Labor Code ?98.6, the aggrieved employees are entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer. In addition to other remedies available, an employer who violates this section is liable for a civil penalty not exceeding ten thousand dollars ($10,000) per employee for each violation of this section. According to Labor Code ?In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($10,000) for each violation of this section.? Cal. Labor Code ?1019. In addition to the foregoing retaliation, and based on the facts set forth above, the employers and those acting on their behalves have threatened to contact or report or contacted or reported to immigration authorities in violation of Labor Code ?1019 Marilyn Patacsil did this on or about December 27, 2013). Cal. Labor Code ?1019 states, It shall be unlawful for an employer or any other person or entity to engage in, or to direct another person or entity to engage in, unfair immigration- related practices against any person for the purpose of, or with the intent of, retaliating against any person for exercising any right protected under this code or by any local ordinance applicable to employees.? Cal. Labor Code ??232, 232.5. Aggrieved employees incorporate all of the facts set forth above based on violations of Cal. Labor Code 1102.5, 1019. Additionally, they allege that employers and those acting on their behalves have violated Cal. Labor Code ??232 and 232.5, which state: 232. No employer may do any of the following: Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages. Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages. Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages. 232.5. employer may do any of the following: Require, as a condition of employment, that an employee refrain from disclosing information about the employer's working conditions. Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose information about the employer's working conditions. Discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer's working conditions. The aggrieved employees testified and disclosed the amount of their wages and about their working conditions on or about November 19, 2013 before the Wage and Hour Division of the US. Department of Labor. Similarly they did this on April 15, 2014 and June 23, 2014, when some of the aggrieved employees filed claims in Contra Costa County superior court alleging among other things, wage and hour violations, retaliation, and Business and Professions ?17200 et seq. violations. Cal. Labor Code ?206.5. Throughout aggrieved employees? employment, the employers and those acting on their behalves required the employees, as a condition to be paid, to execute a statement of hours he or she worked during pay periods which the employer and those acting on their behalves knew to be false. In the time sheets, the aggrieved employees would attempt to insert the true number of hours they believed to have worked [they did not know at the time they completed these time sheets 7 that when they were required to be on the premises those hours should have been counted as hours worked as stated above), but the employers or those acting on their behalves, including but not limited to Michael lose Torio, would make the employees Change the hours so as not to exceed a certain number of hours convenient to the employer or those acting on their behalves, all in an effort to evade the wage and hour laws, including but not limited to the overtime pay laws. Cal. Labor Code ?206.5 states, An employer shall not require the execution ofa release ofa claim or right on account of wages due, or to become due, or made as an advance on wages to be earned, unless payment ofthose wages has been made. A release required or executed in violation ofthe provisions ofthis section shall be null and void as between the employer and the employee. Violation of this section by the employer is a misdemeanor. For purposes ofthis section, "execution ofa release" includes requiring an employee, as a condition ofbeilig paid, to execute a statement ofthe hours he or she worked during a pay period which the employer knows to be false. In sum, aggrieved employees seek to bring a civil suit under Ca]. Labor Code ?2698 et seq. and seek all penalties allowed by law including but not limited to those set forth above and in Cal. Labor Code ?558. Should you have any questions, please do not hesitate to contact the undersigned. Very truly yours, M-- Allan Ii. Villanueva