FILIPINO EMPLOYEE’S COMPLAINT FOR MINIMUM

AND OVERTIME PAY SETTLED BEFORE JURY TRIAL

 

By:

 

Roman P. Mosqueda, Esq.

 

 

            Due to a confidential settlement agreement signed by a Filipino employee with a corporate employer ten (10) days before a five-day jury trial at a Los Angeles County Superior Court, a Notice of Settlement of Entire Case (Form CM-200) was filed by this Author to take the Final Status Conference and the Jury Trial off calendar.

 

            In accordance with Rule 3.1385 of the California Rules of Court, this Author is required to file a Request For Dismissal of the entire case, as plaintiff-employee’s counsel, within forty-five (45) days after the date of the settlement of the case.

 

            Indeed, after receipt of a notice of settlement, a court issues an Order To Show Cause Hearing Re:  Failure To File Dismissal after Notice of Settlement Filed, in compliance with said Rule 3.1385(b).

 

Employee’s Complaint Versus

Employer For Wages:

 

            Pursuant to the Labor Code Private Attorneys General Act of 2004, incorporated as Sections 2698, 2699, 2699.3, and 2699.5 of the California Labor Code, an aggrieved employee may bring a civil action on his or her behalf and other current or former employees to recover civil penalty for violation of the Labor Code, and shall be entitled to an award of reasonable attorney’s fees and costs, if he or she prevails, in addition to the recovery of other remedies filed separately or concurrently with an action taken under this Act.

 

            Before said Labor Code Private Attorneys General Act of 2004, such recovery of civil penalty and other remedies could only be filed with and adjudicated by the Labor Commissioner of the Labor and Workforce Development Agency.

 

            Thus, an aggrieved employee, as in this settled case before the South Bay Redondo Beach Court, may file a private action, a complaint for failure of an employer to:  (1)  pay statutory minimum wages in violation of California Labor Code Sections 1194, 1197, and 1197.1; (2) pay overtime compensation in violation of California Labor Code Sections 510, 1194, and 1194.5; (3) pay sleep/rest time less than five (5) hours per workday; (4) furnish accurate wage and hour statements in violation of California Code Sections 226 and 226.3, with civil penalty; (5) pay waiting time penalties in violation of California Labor Code Sections 201, 202, and 203; (6) maintain payroll records in violation of California Labor Code Sections 226, 1174, 1174.5, with civil penalty; (7) for conversion pursuant to the California Civil Code Sections 3336 and 3294; (8) for unfair competition pursuant to the California Business and Professions Code Sections 17200, et. seq.; and (9) for recovery of civil penalties on plaintiff’s behalf pursuant to California Labor Code Sections 2698 et. seq. 

 

Particulars Of Settled Claims

Of Aggrieved Employee:

 

A.  Claims For Wages:

 

            Without disclosing the identities of the aggrieved employee, client of this Author, of the corporate employer sued, and the amount of settlement because of the confidentiality clause in the settlement agreement, the Filipino employee was a terminated live-in caregiver in a board and care facility for elderly adults.

 

            It should be emphasized that a settlement agreement has no admission of liability, as in this case.  So, the particulars of the aggrieved employee’s claims are mere allegations not admitted by the corporate employer who settled the case.

 

            The stay-in caregiver claimed in his complaint that he was required to work in excess of eight (8) hours per day by his employer.  In addition, the employee further claimed that he was on duty virtually twenty-four (24) hours per day because he was on stand-by and had to assist clients (elderly adults) who rise in the middle of the night to go to the bathroom or to the kitchen.  So, he was not free from all duties during his sleeping time.

 

            Moreover, although not an exempt employee, he was paid a flat rate per month, regardless of the number of hours worked, which fell below the statutory minimum  wage:  $5.75 per hour effective March 01, 1998; $6.25 per hour effective January 01, 2001; and $6.75 per hour effective January 01, 2002.  It should be noted that the California statutory minimum wage was increased to $7.50 per hour effective January 01, 2007; and $8.00 per hour effective January 01, 2008.

 

            Pursuant to California  Labor Code Section 510, an employer is required to pay an employee overtime pay of time and a half for hours worked in excess of eight (8) hours up to twelve (12) hours; double time for hours worked in excess of twelve (12) hours; time and a half in excess of forty (40) hours a week; time and a half for the first eight (8) hours on the seventh consecutive working day; and double time for work in excess of eight (8) hours on the seventh consecutive working day.

 

            Moreover, an aggrieved employee is entitled to receive waiting time penalty for thirty (30) days under California Labor Code Section 203 for failure of an employer to pay all unpaid wages at the time of termination of employment.

 

            Lastly, pursuant to 29 C.F.R. §785.22 and Wage-Hour Opinion Letter Nos. 2101 and 1622, the entire time that an employee cannot get at least five (5) hours of sleep during the scheduled rest period is considered working time.

            B.  Claims For Civil Penalties:  

 

            For payment of wages less than the statutory minimum wage, an employer is liable for civil penalty under California Labor Code Section 1197.1 in the sum of $100.00 for each underpaid employee for each pay period for any initial intentional violation, a $250.00 for each underpaid employee for each pay period for each subsequent violation.

 

            For failure to furnish accurate wage and hour statements, an employer is subject to a civil penalty in the amount of $250.00 per employee per violation in an initial citation and $1,000.00 per employee for each violation in a subsequent violation, under California Labor Code Section 226.3.

 

            Under California Labor Code Section 1174.5, an employer who willfully fails to maintain payroll records as required by Section 1174(c) and (d) shall be subject to a civil penalty of $500.00.

 

            As stated above, civil penalties for violation of the Labor Code may be recovered through a civil action brought by an aggrieved employee, under Labor Code Sections 2699 and 2699.3.

 

            Said Section 2699(f) provides for civil penalty of $100.00 for each aggrieved employee per pay period for the initial violation and $200.00 for each aggrieved employee per pay period for each subsequent violation, in case a civil penalty is not specifically provided.  The civil penalties recovered shall be distributed to the Labor and Workforce Development Agency.

 

            In the experience of this Author, the award or settlement of reasonable attorney’s fees more often exceeds the recovery of civil penalties.

 

 

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            (This Author, Roman P. Mosqueda, has prosecuted employees’ claims for wages, as well as defended employers from such claims.)