Case 4:14-cv-02337-CW Document 6 Filed 05/22/14 Page 1 of 10 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, 6 Plaintiff, 7 8 9 United States District Court For the Northern District of California 10 11 12 v. FATIMA/ZAHRA, INC., d/b/a LAKE ALHAMBRA ASSISTED LIVING CENTER, a California corporation; MEHRANGIZ SARKESHIK, an individual; and ABOLFAZL SARKESHIK, an individual; No. C 14-2337 CW ORDER GRANTING AS MODIFIED APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE AND SETTING PRELIMINARY INJUNCTION HEARING (Docket No. 3) Defendants. ________________________________/ 13 14 On May 21, 2014, Plaintiff Thomas E. Perez, Secretary of the 15 United States Department of Labor (DOL), moved for a temporary 16 restraining order (TRO) to enjoin Defendants Fatima/Zahra, Inc., 17 d/b/a Lake Alhambra Assisted Living Center, Mehrangiz Sarkeshik, 18 19 and Abolfazl Sarkeshik from interfering with Plaintiff’s investigation of Defendants’ workplace under the Fair Labor 20 21 Standards Act (FLSA). After reviewing the papers, the Court 22 GRANTS Plaintiff’s motion and issues the requested TRO as 23 modified. 24 25 26 27 28 BACKGROUND Lake Alhambra, which is owned by Dr. Abolfazl Sarkeshik and his wife Ms. Mehrangiz Sarkeshik, is a care center for patients with dementia, Alzhemier’s disease, and mental illness. Hart Case 4:14-cv-02337-CW Document 6 Filed 05/22/14 Page 2 of 10 1 2 Decl. ¶ 14. schedules. Ms. Sarkeshik manages the staff and sets their Id. In 2007, an investigation by the Wage and Hour Division (WHD) 3 4 of the DOL established that Lake Alhambra violated the overtime 5 and record-keeping provisions of the FLSA. 6 7 Hart Decl. ¶ 4. These provisions require employers to maintain accurate time and payroll records to guarantee that employees are paid a minimum wage for 8 United States District Court For the Northern District of California 9 all hours worked and paid overtime wages when they are due. See 10 29 U.S.C. §§ 206, 207, 211, 215. 11 Defendants agreed to come into compliance with the FLSA by paying 12 back wages, paying overtime, and maintaining time and payroll 13 records. 14 15 As a result of the finding, Hart Decl. ¶ 4. In March 2014, a confidential informant lodged a complaint with WHD that Lake Alhambra was again not paying overtime. Id. ¶ 16 17 18 3. Investigator Edward Hart, Jr. was assigned to investigate the complaint. Id. On March 19, 2014, Investigator Hart went to Lake 19 Alhambra to observe business operations, to interview the employer 20 and employees about hours worked and wages paid, and to obtain 21 documents such as payroll records. 22 himself as a WHD Investigator, stated he was conducting an 23 24 Id. ¶ 5. He identified investigation, and asked to speak to the manager. Id. ¶¶ 4-5. An employee put Ms. Sarkeshik on the phone, who yelled at 25 26 Investigator Hart, saying, “You didn’t tell me you were coming” 27 and “Leave right now!” Id. ¶ 5. Investigator Hart overheard Ms. 28 Sarkeshik tell the employee over the phone, “You need to get him 2 Case 4:14-cv-02337-CW Document 6 Filed 05/22/14 Page 3 of 10 1 out of there or you will be fired!” Id. ¶ 7. Ms. Sarkeshik 2 arrived and had called the police, who arrived shortly thereafter, 3 but refused to remove Investigator Hart. 4 Sarkeshik requested that Investigator Hart speak to her attorney, 5 and while he did so, he noticed Ms. Sarkeshik speaking quickly and 6 7 Id. ¶¶ 8-9. intently to her employees, who seemed uncomfortable. Ms. Id. ¶ 10. Some employees initially showed interest in speaking to 8 United States District Court For the Northern District of California 9 Investigator Hart, saying, “If it’s not to get anyone in trouble, 10 we’ll talk.” 11 to the employees, she told Investigator Hart in front of the 12 employees that “no one wants to talk to you.” 13 Investigator Hart was able to get a record of each of the 14 employees’ names, but all of them declined to answer any of his 15 questions. Id. ¶ 11. However, after Ms. Sarkeshik again spoke Id. ¶ 12. One employee stated she was uncomfortable talking to 16 17 18 19 him, while another stated that Ms. Sarkeshik told the employees that if they talked to WHD, they would not have a job. Id. ¶ 13. On March 24, 2014, Investigator Hart met with Dr. Sarkeshik 20 and his attorney. 21 agreed they would cooperate fully with the investigation and 22 provided some documents, including some time cards and the names 23 24 Id. ¶ 14. Dr. Sarkeshik and his attorney and addresses of employees. Id. ¶ 15. Time cards created after the end of October 2013 do not identify the date or pay period, 25 26 but only the day of the week. Id. Investigator Hart sent letters 27 to the employees at the addresses provided, but about half were 28 returned as undeliverable. Id. ¶ 16. 3 Investigator Hart was able Case 4:14-cv-02337-CW Document 6 Filed 05/22/14 Page 4 of 10 1 to speak to a few employees, who told him that Ms. Sarkeshik told 2 them that if they received a letter from WHD, they should tell her 3 and not respond to the letter. 4 that many others were too scared to talk to or cooperate with WHD. 5 Id. 6 7 Id. ¶ 17. The employees stated LEGAL STANDARD To obtain either a TRO or a preliminary injunction under 8 United States District Court For the Northern District of California 9 Federal Rule of Civil Procedure 65, the moving party must 10 demonstrate “(1) a likelihood of success on the merits; (2) a 11 significant threat of irreparable injury; (3) that the balance of 12 hardships favors the applicant; and (4) whether any public 13 interest favors granting an injunction.” 14 F.3d 1222, 1227 (9th Cir. 2003); see also Winter v. Natural Res. Raich v. Ashcroft, 352 15 Def. Council, Inc., 129 S. Ct. 365, 374 (2008). The Ninth Circuit 16 17 has recognized that an injunction could issue if “serious 18 questions going to the merits were raised and the balance of 19 hardships tips sharply in plaintiff’s favor,” so long as the 20 plaintiff demonstrates irreparable harm and shows that the 21 injunction is in the public interest. 22 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citation 23 and internal quotation marks omitted). Alliance for the Wild Injunctive relief is “an 24 25 26 27 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” at 22. 28 4 Winter, 555 U.S. Case 4:14-cv-02337-CW Document 6 Filed 05/22/14 Page 5 of 10 DISCUSSION 1 To enforce the FLSA, Congress empowered the Secretary to 2 3 investigate employers for compliance with the act, including the 4 right to “enter and inspect such places and such records (and make 5 such transcriptions thereof), question such employees, and 6 7 investigate such facts, conditions, practices, or matters as he may deem necessary or appropriate to determine whether any person 8 United States District Court For the Northern District of California 9 has violated any provision of this chapter, or which may aid in 10 the enforcement of the provisions of this chapter.” 11 211. 12 there is a “reasonable ground” for the investigation. 13 Workforce Partners, LLC v. Watson, 512 F. App'x 830, 835 (10th 14 Cir. 2013); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208 15 29 U.S.C. § The Secretary may conduct such an investigation as long as CSG (1946) (administrative investigation must be reasonable). The 16 17 18 FLSA grants the Secretary these investigatory powers because the statute’s enforcement depends “not upon continuing detailed 19 federal supervision or inspection of payrolls, but upon 20 information and complaints received from employees seeking to 21 vindicate rights claimed to have been denied.” 22 Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1333 (2011). 23 24 Kasten v. Saint- To encourage workers to provide freely the information necessary for enforcement, the FLSA further protects workers who cooperate 25 26 27 with the Secretary from retaliation by their employers. § 215. 29 U.S.C. This anti-retaliation provision prevents “fear of economic 28 5 Case 4:14-cv-02337-CW Document 6 Filed 05/22/14 Page 6 of 10 1 2 3 retaliation from inducing workers quietly to accept substandard conditions.” Kasten, 131 S. Ct. at 1333. There is substantial evidence that, while Investigator Hart 4 was present and afterwards, Ms. Sarkeshik threatened employees 5 that they would lose their jobs if they cooperated with the 6 7 investigation. Despite assurances by Defendants’ attorney, Ms. Sarkeshik apparently continued to threaten retaliation against 8 United States District Court For the Northern District of California 9 employees who spoke to WHD. These threats, although taken in 10 anticipation of employees engaging in protected activity, are “no 11 less retaliatory than action taken after the fact.” 12 Salt Lake Cnty., 1 F.3d 1122, 1128 (10th Cir. 1993); see also 13 Hashimoto v. Bank of Hawaii, 999 F.2d 408, 411 (9th Cir. 1993); 14 Lambert v. Ackerley, 180 F.3d 997, 1005 (9th Cir. 1999) (if the 15 Sauers v. FLSA “is to function effectively, inspectors must be free from the 16 17 18 threat of retaliatory discharge for identifying safety and quality problems.”). Accordingly, Plaintiff is likely to succeed in 19 establishing that Defendants engaged in retaliatory activity 20 against their employees. 21 22 23 24 Further, Plaintiff has also demonstrated a likelihood of success on the merits of its recordkeeping FLSA claims. The records must be “clear and identifiable by date or pay period.” 29 C.F.R. § 516.1. At least some of the timecards produced by 25 26 27 Defendants do not identify the dates or pay period. ¶ 15, Exs. B-C. 28 6 Hart Decl. Case 4:14-cv-02337-CW Document 6 Filed 05/22/14 Page 7 of 10 1 Plaintiff argues that irreparable harm will ensue unless 2 injunctive relief is issued because the protections of the FLSA 3 will not be effective. 4 chilled Defendants’ employees from speaking to Plaintiff. 5 Ms. Sarkeshik’s threats and intimidation continue, Plaintiff will 6 7 Ms. Sarkeshik’s threats appear to have Should not be able to gather the information necessary to conduct the investigation. Employee interviews play a crucial role in 8 United States District Court For the Northern District of California 9 establishing WHD violations. See id. ¶ 19; Kasten, 131 S. Ct. at 10 1333. 11 then Defendants’ employees’s rights under the FLSA may be 12 irreparably injured. 13 F.2d 935, 938-39 (9th Cir. 1987) (where “employees may be deterred 14 from engaging in legitimate conduct,” retaliation for the exercise 15 If Defendants are able to block Plaintiff’s investigation, See Arcamuzi v. Cont'l Air Lines, Inc., 819 of protected activity represents “possible irreparable harm far 16 17 18 beyond economic loss”). The balance of the equities and the public interest weigh in 19 Plaintiff’s favor. 20 that “the secretary seeks to vindicate a public, and not a private 21 right.” 22 (quoting Marshall v. Chala Enterprises, Inc., 645 F.2d 799, 808 23 24 The Court gives substantial weight to the fact Perez v. Jie, 2014 WL 1320130, at *2 (W.D. Wash.) (9th Cir. 1983)). There is a strong public interest in favor of enforcement of the FLSA, which seeks to eliminate “labor 25 26 conditions detrimental to the maintenance of the minimum standard 27 of living” of workers. 29 U.S.C. § 202(a). 28 Defendants have no legitimate interest in preventing Plaintiff 7 On the other hand, Case 4:14-cv-02337-CW Document 6 Filed 05/22/14 Page 8 of 10 1 2 3 from conducting what appears to be a reasonable and lawful investigation. Plaintiff proposes a number of provisions for a TRO that he 4 argues are necessary to prevent retaliation by Defendants. 5 Court adopts only those provisions that are reasonably necessary 6 7 The to accomplish this goal before the preliminary injunction motion can be heard. Certain provisions are aimed at requiring 8 United States District Court For the Northern District of California 9 Defendants to “maintain accurate records . . . as required under 10 the FLSA” and provide contact information for persons that 11 Defendants employed within the past three years. 12 would entail a mandatory rather than prohibitory injunction and is 13 not as urgent as the other requested terms, the Court does not 14 adopt these provisions at this time. 15 Because this Plaintiff has not cited any legal authority supporting its request for an award of costs 16 17 related to this motion, and so it is denied. CONCLUSION 18 19 Defendants Fatima/Zahra, Inc., doing business as Lake 20 Alhambra Assisted Living Center, and its owners Mehrangiz 21 Sarkeshik and Abolfazl Sarkeshik, along with their agents, 22 attorneys, employees, and all those in active concert or 23 24 participation with Defendants, are hereby enjoined: 1. From terminating or threatening to terminate any 25 26 27 employee, or retaliating or discriminating against any employee in any other way, based on their belief that 28 8 Case 4:14-cv-02337-CW Document 6 Filed 05/22/14 Page 9 of 10 such employee spoke with a U.S. Department of Labor, WHD 1 investigator; 2 3 2. From telling anyone who works for them not to speak to 4 representatives of the DOL or to provide false 5 information to the DOL regarding the terms and 6 conditions of their employment, or asking anyone who 7 works for them to give them any documents or business 8 cards provided by a representative of the DOL; United States District Court For the Northern District of California 9 10 3. From obstructing the DOL’s investigation in any way; 11 4. From obstructing the DOL’s representatives from 12 providing Defendants’ employees with a hard copy of a 13 statement informing them of their right to speak with 14 representatives of the DOL free from retaliation or 15 threats of retaliation or intimidation, as well as 16 contact information for representatives of the DOL; 17 18 5. injunction hearing; and 19 20 21 22 23 24 From terminating any employee prior to the preliminary 6. From destroying any records prior to the preliminary injunction hearing. The Court further sets a preliminary injunction hearing for June 5, 2014 at 2:00 PM in Courtroom 2. At the hearing, the Court will consider adding the additional requirements requested by 25 26 Plaintiff. Any response by Defendants to the preliminary 27 28 9 Case 4:14-cv-02337-CW Document 6 Filed 05/22/14 Page 10 of 10 1 2 3 injunction motion, showing cause why the requested injunction should not be entered, must be filed no later than May 29, 2014. IT IS SO ORDERED. 4 5 6 Dated: 5/22/14 CLAUDIA WILKEN United States District Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10