EIIOOHSED

1 BLUMENTHAL, NORDREHAUG & RHOWMJ[K FILE:D

Norman B. Blumenthal (State Bar #068687) 1\L !\ t·H: D/!, co tr rn y
2 KyleR. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066) 2CII FEB 22 P/'1 3: 12
3 2255 Calle Clara
La Jolla, CA 92037 'CLERK OF THE SUPLf.no;~ CO!Jf~T
4 Telephone: (858)55 1-1223
Facsimile: (858) 551-1232
5 Website: www.bamlawca.com
6 Attorneys for Plaintiff
7
8
9
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
liN AND FOR THE COUNTY OF ALAMEDA
12
13
14 ARIEL J. FULCHER, an individual, on CASE No. _ _ _ _ _ _ _ __
behalf of himself and all persons similarly
15 situated, CLASS ACTION COMPLAINT FOR:

16 1. UNFAIR COMPETITION IN
Plaintiff, VIOLATION OF CAL. BUS. & PROF.
17 CODE§§ 17200 et seq.;
vs. 2. FAILURE TO PAY OVERTIME
18 WAGES IN VIOLATION OF CAL. LAB.
OLAN MILLS, INC.; and Does 1 through CODE§§ 510, 1194 & 1198; and,
19 SO, 3. FAILURE TO PROVIDE
ACCURATE ITEMIZED WAGE
20 Defendant. STATEMENTS IN VIOLATION OF
CAL. LAB. CODE § 226.
21
DEMAND FOR A JURY TRIAL
22
23
24
25
Plaintiff Ariel J. Fulcher ("PLAINTIFF"), an individual, alleges upon information and
26
belief, except for his own acts and knowledge which are based on personal knowledge, the
27 following:
28

CLASS ACTION COMPLAINT

,.

1 NATURE OF THE ACTION

2 1. Defendant Olan Mills, Inc. hereinafter also referred to as "OLAN MILLS" or

3 "DEFENDANT" operates a network of professional portrait studios within Kmart, Belk, Macy's
4 and other stores throughout the United States and Puerto Rico. The company's products and
5 services include portrait CD's, portrait sizes, portrait galleries, greeting cards,
6 dreamprint/pastels, montage designs, sports cards and borders, portrait panels/ duets, treasures,
7 and black and white color enhanced products. OLAN MILLS also publishes church directories
8 to churches and other organizations as well as family portraits to their members. In addition,
9 the company offers its products and services online through the company website,
10 olanmills.com.
11 2. Plaintiff Ariel J. Fulcher was a non-exempt, hourly employee of OLAN MILLS
12 in California. During the CLASS PERIOD, OLAN MILLS did not have in place an immutable
13 timekeeping system to accurately record and pay the PLAINTIFF and the other Class Members
14 for the actual number of hours they worked each day. OLAN MILLS systematically and
15 unlawfully deleted and/or reduced the number of hours worked by employees in order to avoid
16 paying employees the applicable overt)me rates. OLAN MILLS reduced the number of hours
17 worked by employees by systematically clocking out employees before the end of their shift.
18 As a result, employees regularly worked offthe clock without compensation and OLAN MILLS
19 regularly recorded reduced hours in the timekeeping system by not recording overtime hours
20 worked in violation of Cal. Lab. Code § 226. Therefore, the PLAINTIFF and the Class
21 Members forfeited hours worked and did not receive compensation for all hours worked,
22 including but not limited to overtime hours worked. OLAN MILLS also failed to provide
23 mandatory uninterrupted thirty (30) minute meal breaks to the PLAINTIFF and the Class
24 Members. This practice was a direct result of OLAN MILLS' uniform policy and practice not
25 to properly staff the portrait studios so as to provide employees with uninterrupted thirty (30)
26 minute meal breaks. As a result, the PLAINTIFF and the Class Members forfeited mandatory
27 meal breaks each workday without additional compensation in accordance with
28 DEFENDANT's strict, corporate and uniform guidelines. OLAN MILLS' uniform policy and

CLASS ACTION COMPLAINT

-2-
 1 practice not to pay employees for all hours worked is evidenced by DEFENDANT's business
2 records and timekeeping system.
3 3. PLAINTIFF brings this Action against OLAN MILLS on behalf of himself
4 and on behalf of a class consisting of all non-exempt, hourly employees who worked for
5 OLAN MILLS in California during the CLASS PERIOD ("CLASS" or "Class Members").
6 PLAINTIFF brings this Class Action to fully compensate the Class Members for their losses
7 incurred during the CLASS PERIOD caused by OLAN MILLS' uniform policy and practice
8 which fails to compensate the PLAINTIFF, and the Class Members, for all hours worked.
9 OLAN MILLS' uniform policy and practice alleged herein is an unfair, deceptive and
10 unlawful practice whereby OLAN MILLS retained and continues to retain wages due
11 PLAINTIFF, and the Class Members, for all hours worked. PLAINTIFF, and the Class
12 Members, seek an injunction enjoining such conduct by OLAN MILLS in the future, relief
13 for the named PLAINTIFF and Class Members who have been economically injured by
14 DEFENDANT's past and current unlawful conduct, and all other appropriate legal and
15 equitable relief.
16
17 1'HE PARTIES

18 4. Defendant Olan Mills, Inc. ("OLAN MILLS" or "DEFENDANT"), a

19 Delaware corporation, was founded in 1987 and is based and headquartered in Chattanooga,
20 Tennessee. At all relevant times mentioned herein, OLAN MILLS conducted and continues
21 to conduct substantial and regular business throughout California.
22 5. The true names and capacities, whether individual, corporate, subsidiary,
23 partnership, associate or otherwise of DEFENDANT Does 1 through 50, inclusive, are
24 presently unknown to the PLAINTIFF who therefore sues these defendants by such fictitious
25 names pursuant to Cal. Civ. Proc. Code§ 474. PLAINTIFF will seek leave to amend this
26 Complaint to allege the true names and capacities of Does 1 through 50, inclusive, when
27 they are ascertained. PLAINTIFF is informed and believes, and based upon that information
28 and belief alleges, that the defendants named in this Complaint, including Does 1 through

CLASS ACTION COMPLAINT

-3-
,.

1 50, inclusive, are responsible in some manner for one or more of the events and happenings
2 that proximately caused the injuries and damages hereinafter alleged.
3 6. The agents, servants, and/or employees of DEFENDANT and each of them
4 acting on behalf of DEFENDANT acted within the course and scope of his, her or its
5 authority as the agent, servant, and/or employee of DEFENDANT, and personally
6 participated in the conduct alleged herein on behalf of DEFENDANT with respect to the
7 conduct alleged herein. Consequently, DEFENDANT is jointly and severally liable to the
8 PLAINTIFF and the other members of the CLASS, for the loss sustained as a proximate
9 result of the conduct of DEFENDANT's agents, servants, and/or employees.
10 7. At all relevant times mentioned herein, Plaintiff Ariel J Fulcher
11 ("PLAINTIFF") resided in California. PLAINTIFF was employed by OLAN MILLS in
12 California as a non-exempt, hourly Photographer from December 8, 2010 to December 23,
13 20 10. PLAINTIFF's job duties primarily consisted of handling the day-to-day studio
14 operation which involved answering messages, running the front desk, scheduling
15 appointments, distributing pick-ups and taking and viewing photographs. Plaintiff was paid
16 ·on an hourly basis and generally worked twelve (12) to sixteen (16) hours each workday.
17
18 THE CONDUCT

19 8. OLAN MILLS systematically failed to correctly pay the PLAINTIFF and the
20 Class Members for all the hours they worked, including hours worked in excess of eight (8) in
21 a workday and forty (40) in a workweek. OLAN MILLS used a mutable timekeeping system
22 in which hours could be unilaterally erased or altered by OLAN MILLS such that there existed
23 no immutable timekeeping system that accurately recorded the true number ofhours worked by
24 the Class Members. OLAN MILLS' practice resulted in the Class Members not being able to
25 immutably record the accurate number of straight time hours worked and also hours in excess
26 of eight (8) per workday and forty (40) per workweek so that OLAN MILLS could avoid paying
27 the Class Members premium wages. OLAN MILLS also failed to provide mandatory
28 uninterrupted thirty (30) minute meal breaks to the PLAINTIFF and the Class Members each

CLASS ACTION COMPLAINT

-4-
1 workday. This practice was a direct result ofOLAN MILLS' uniform policy and practice to not
2 properly staff the portrait studios so as to provide employees with uninterrupted thirty (30)

3 minute meal breaks. As a result, the PLAINTIFF and the Class Members forfeited mandatory
4 meal breaks each workday without additional compensation in accordance with
5 DEFENDANT's strict, corporate and uniform guidelines

6 9. In violation of the applicable sections of the California Labor Code and the
7 requirements of the Industrial Welfare Commission ("IWC") Wage Order, OLAN MILLS as
8 . a matter of corporate policy, practice and procedure, intentionally, knowingly and systematically

9 failed to properly compensate the PLAINTIFF and the Class Members for all hours worked, by
10 systematically deleting and/or reducing the true number of hours worked by employees.
11 Specifically, OLAN MILLS had in place a mutable timekeeping system that did not accurately
12 record the true number of hours worked by employees. OLAN MILLS, in fact, reduced the
13 number ofhours worked by employees by systematically clocking out employees before the end
14 of their shift. As a result, employees regularly worked off the clock without compensation and

15 OLAN MILLS regularly recorded reduced hours in the timekeeping system by not recording
16 overtime hours worked in violation of Cal. Lab. Code § 226, Therefore, the PLAINTIFF and
17 the Class Members forfeited hours worked and did -not receive compensation for all hours
18 worked, including but not limited to overtime hours worked. This uniform policy and

19 systematic practice ofOLAN MILLS was intended to purposefully avoid the payment of wages
20 and premium wages required by California law which allows OLAN MILLS to illegally profit
21 and gain an unfair advantage over competitors. To the extent equitable tolling operates to toll
22 claims by the CLASS against OLAN MILLS, the CLASS PERIOD should be adjusted
23 accordingly.
24 10. OLAN MILLS instituted a company-wide policy whereby OLAN MILLS used
25 a mutable timekeeping system in which hours could be unilaterally erased or altered by OLAN
26 MILLS such that there existed no immutable timekeeping system that accurately recorded the
27 true number of hours worked by the Class Members. OLAN MILLS reduced the number of
28 hours worked by employees by systematically clocking out employees before the end of their

CLASS ACTION COMPLAINT

-5-
1 shift. As a result, employees regularly worked off the clock without compensation and OLAN
2 MILLS regularly recorded reduced hours in the timekeeping system by not recording overtime
3 hours worked in violation of California law. Therefore, the PLAINTIFF and the Class
4 Members forfeited hours worked and did not receive compensation for all hours worked,
5 including but not limited to overtime hours worked. In addition, OLAN MILLS failed to
6 provide mandatory uninterrupted thirty (30) minute meal breaks to the PLAINTIFF and the
7 Class Members each workday. This practice was a direct result of OLAN MILLS' uniform
8 policy and practice to not properly staff the portrait studios so as to provide employees with
9 uninterrupted thirty (30) minute meal breaks. As a result, the PLAINTIFF and the Class
10 Members forfeited mandatory meal breaks each workday without additional compensation in
11 accordance with DEFENDANT's strict, corporate and uniform guidelines. These systematic
12 and company-wide policies and practices originating at the corporate level are the cause of the
13 illegal pay practices as described herein.
14
15 THE CLASS

16 11. PLAINTIFF brings this Action against OLAN MILLS pursuant to California
17 Code of Civil Procedure, Section 3 82, on behalf of himself and on behalf of a class consisting
18 of all non-exempt, hourly employees who worked for OLAN MILLS in California during the
19 CLASS PERIOD ("CLASS" or "Class Members"). The applicable "CLASS PERIOD" is
20 defined as the period beginning on the date four (4) years prior to the filing of this Complaint
21 and ending on a date as determined by the Court.
22 12. All non-exempt, hourly employees working for OLAN MILLS in California are
23 similarly situated in that they are all subject to OLAN MILLS' uniform policy and systematic
24 practice that requires them to perform work without compensation as required by law.
25 13. During the CLASS PERIOD, OLAN MILLS uniformly violated the rights of the
26 PLAINTIFF and the Class Members under California law, without limitation, in the following
27 manners:
28 (a) Violating California Code of Regulations, Title 8, Sections 1101 0(7)

CLASS ACTION COMPLAINT

-6-
 1 and 11 040(7) by failing to compensate the PLAINTIFF and the Class
2 Members for all hours worked, including straight time and overtime;
3 (b) Violating California Code of Regulations, Title 8, Sections 1101 0(7)
4 and 11040(7), by failing to have in place an immutable timekeeping
5 system capable of tracking, without mutation, all of the time the
6 PLAINTIFF and the Class Members work that is not subject to
7 unilateral modification and manipulation;
8 (c) Violating California Labor Code Sections 204, 206.5, 510 and 1198, by
9 failing to pay premium wages for hours worked in excess eight (8) in
10 any workday and forty (40) in any workweek;
11 (d) Violating California Labor Code Section 226, by failing to provide the
12 PLAINTIFF and the Class Members with accurate itemized wage
13 statements;
14 (e) Violating California Labor Code Sections 201 and 202, by failing to
15 tender full payment and/or restitution of wages owed to employees
16 whose employment with DEFENDANT has terminated;
17 (f) Violating Business & Professions Code Sections 17200 et seq., by
18 committing acts of unfair competition in violation of the California
19 Labor Code and public policy, by failing to provide the PLAINTIFF
20 and the Class Members with uninterrupted thirty (30) minute meal
21 breaks; and,
22 (g) Violating Business & Professions Code Sections 17200 et seq., hy
23 committing acts of unfair competition in violation of the California
24 Labor Code and public policy, by failing to pay the PLAINTIFF and the
25 Class Members wages for all hours worked as a result of clocking out
26 employees before the end of their shift.
27 14. As a result of OLAN MILLS' uniform policies, practices and procedures,
28 there are numerous questions of law and fact common to all Class Members who worked for

CLASS ACTION COMPLAINT

-7-
 1 OLAN MILLS in California during the CLASS PERIOD. These questions include, but are
2 not limited to, the following:
3 (a) Whether OLAN MILLS' policies, practices and pattern of conduct
4 described in this Complaint was and is unlawful;
5 (b) Whether OLAN MILLS failed to accurately pay the PLAINTIFF and
6 the Class Members for all hours worked, including overtime hours;
7 (c) Whether OLAN MILLS instructed, programmed, or permitted
8 employees to state an incorrect number of hours worked;
9 (d) Whether OLAN MILLS failed to maintain an immutable timekeeping
10 system so as to record true and accurate time records for employees;
11 (e) Whether OLAN MILLS failedto maintain true and accurate time
12 records for all hours worked by the Class Members;
13 (f) Whether OLAN MILLS failed to provide employees with uninterrupted
14 thirty (30) minute meal breaks;
15 (g) Whether OLAN MILLS failed to provide employees with accurate
16 itemized wage statements;
17 (h) Whether OLAN MILLS' compensatory time policy and practice
18 complies with the requirements ofLabor Code§ 204.3;
19 (i) Whether OLAN MILLS has engaged in unfair competition by the
20 above-listed conduct; and,
21 (j) Whether OLAN MILLS' conduct was willful.
22 15. This Class Action meets the statutory prerequisites for the maintenance of a
23 Class Action as set forth in California Code of Civil Procedure, Section 382, in that:
24 (a) The persons who comprise the CLASS are so numerous that the joinder
25 of all such persons is impracticable and the disposition of their claims
26 as a class will benefit the parties and the Court;
27 (b) Nearly all factual, legal, statutory, declaratory and injunctive relief
28 issues that are raised in this Complaint are common to the CLASS and

CLASS ACTION COMPLAINT

-8-
 1 will apply uniformly to every member of the CLASS;
2 (c) The claims of the representative PLAINTIFF are typical of the claims
3 of each member of the CLASS. PLAINTIFF, like all the other Class
4 Members, was not correctly compensated for all hours worked because
5 of DEFENDANT's company policies and practices the PLAINTIFF
6 sustained economic injuries arising from OLAN MILLS' violations of
7 the laws of California. PLAINTIFF and the Class Members are
8 similarly or identically harmed by the same unfair, deceptive, unlawful
9 and pervasive pattern of misconduct engaged in by OLAN MILLS; and,
10 (d) The representative PLAINTIFF will fairly and adequately represent and
11 protect the interest of the CLASS, and has retained counsel who are
12 competent and experienced in Class Action litigation. There are no
13 material conflicts between the claims of the representative PLAINTIFF
14 and the Class Members that would make class certification
15 inappropriate. Counsel for the CLASS will vigorously assert the claims
16 of all Class Members.
17 16. In addition to meeting the statutory prerequisites to a Class Action, this Action
18 is properly maintained as a Class Action pursuant to California Code of Civil Procedure,
19 Section 3 82, in that:
20 (a) Without class certification and determination of declaratory, injunctive,
21 statutory and other legal questions within the class format, prosecution
22 of separate actions by individual members of the CLASS will create the
23 risk of:
24 (i) Inconsistent or varying adjudications with respect to individual
25 members of the CLASS which would establish incompatible
26 standards of conduct for the parties opposing the CLASS; or,
27 (ii) Adjudication with respect to individual members of the CLASS
28 which would as a practical matter be dispositive of interests of

CLASS ACTION COMPLAINT

-9-
 1 the other members not party to the adjudication or substantially
2 impair or impede their ability to protect their interests;
3 (b) The parties opposing the CLASS have acted on grounds generally
4 applicable to the CLASS, making appropriate class-wide relief with
5 respect to the CLASS as a whole in that OLAN MILLS' company
6 policies and practices failed to compensate employees for all hours
7 worked, and failed to properly apply the overtime rate of pay applicable
8 to all hours worked in excess of eight (8) in any workday and forty (40)
9 in any workweek; and,
10 (c) Common questions of law and fact exist as to the Class Members and
11 predominate over any question affecting only individual members, and
12 Class Action is superior to other available methods for the fair and
13 efficient adjudication of the controversy, including consideration of:
14 (i) The interests of the members of the CLASS in individually
15 controlling the prosecution or defense of separate actions;
16 (ii) The extent and nature of any litigation concerning the
17 controversy already commenced by or against members of the
18 CLASS;
19 (iii) The desirability or undesirability of concentrating the litigation
20 of the claims in the patiicular forum;
21 (iv) The difficulties likely to be encountered in the management of a
22 Class Action; and,
23 (v) The basis of OLAN MILLS' policies and practices uniformly
24 applied to all Class Members.
25 17. This Court should permit this Action to be maintained as a Class Action
26 pursuant to California Code of Civil Procedure, Section 382, because:
27 (a) The questions of law and fact common to the CLASS predominate over
28 any question affecting only individual members;

CLASS ACTION COMPLAINT

-10-
 1 (b) A Class Action is superior to any other available method for the fair
2 and efficient adjudication of the claims of the members of the CLASS;
3 (c) The Class Members are so numerous that it is impractical to bring all
4 Class Members before the Court;
5 (d) PLAINTIFF, and the Class Members, will not be able to obtain effective
6 and economic legal redress unless the action is maintained as a Class
7 Action;
8 (e) There is a community of interest in obtaining appropriate legal and
9 equitable relief for the common law and statutory violations and other
10 improprieties, and in obtaining adequate compensation for the damages
11 and injuries which OLAN MILLS' actions have inflicted upon the
12 CLASS;
13 (f) There is a community of interest in ensuring that the combined assets and
14 available insurance of OLAN MILLS are sufficient to adequately
15 compensate the members ofthe CLASS for any injuries sustained;
16 (g) OLAN MILLS has acted or has refused to act on grounds generally
17 applicable to the CLASS, thereby making final class-wide relief
18 appropriate with respect to the CLASS as a whole; and,
19 (h) The Class Members are readily ascertainable from the business records
20 ofOLAN MILLS. The CLASS consists of all ofOLAN MILLS' non-
21 exempt, hourly employees of OLAN MILLS in California who were
22 subject to the above described uniform policies and practices in
23 California during the applicable time period.
24
25 JURISDICTION & VENUE

26 18. This Court has jurisdiction over this Action pursuant to California Code of Civil
27 Procedure, Section 410.10 and California Business & Professions Code, Section 17203. This
28 Action is brought as a Class Action on behalf of similarly situated employees ofOlan Mills, Inc.

CLASS ACTION COMPLAINT

-11-
1 pursuant to California Code of Civil Procedure, Section 3 82.
2 19. Venue is proper in this Court pursuant to California Code of Civil Procedure
3 Sections 395 and 395.5, because Olan Mills, Inc. (i) currently maintains and at all relevant
4 times maintained offices and facilities in this County, and (ii) committed the wrongful
5 conduct herein alleged in this County against members of the CLASS.
6
7 FIRST CAUSE OF ACTION

8 For Unlawful, Unfair and Deceptive Business Practices

9 [Cal. Bus. And Prof. Code §§ 17200 et seq.]
10 (By PLAINTIFF and the CLASS and against DEFENDANT)
11 20. PLAINTIFF, and the Class Members, reallege and incorporate by this reference,
12 as though fully set forth herein, paragraphs 1 through 19 of this Complaint.
13 21. DEFENDANT is a "persons" as that term is defined under the California
14 Business & Professions Code, Section 17021.
15 22. Section 17200 of the California Business & Professions Code defines unfair
16 competition as any unlawful, unfair, or fraudulent business act or practice. Section 17200
17 applies to violations of labor laws in the employment context. Section 17203 authorizes
18 injunctive, declaratory, and/or other equitable relief with respect to unfair competition as
19 follows:
20 Any person who engages, has engaged, or proposes to engage in unfair
competition may be enjoined in any court of competent jurisdiction. The court
21 may make such orders or judgments, including the appointment of a receiver, as
may be necessary to prevent the use or employment by any person of any practice
22 whtch constitutes unfair competition, as defined in this chapter, or as may be
necessary to restore to any person in interest any money or property, real or
23 personal, which may have been acquired by means of such unfair competition.
24 23. By the conduct alleged herein, OLAN MILLS' uniform policies and practices
25 violated and continue to violate California law, and specifically provisions of the Wage Orders,
26 the California Labor Code, including Sections 201, 202, 204, 206.5, 510 and 1198, and the
27 California Code ofRegulations, Title 8, Sections 11010 and 11040, for which this Court should
28 issue equitable and injunctive relief, pursuant to Section 17203 of the California Business &

CLASS ACTION COMPLAINT

-12-
1 Professions Code, including restitution of wages wrongfully withheld.
2 24. By the conduct alleged herein, OLAN MILLS' practices were unfair in that these
3 practices violate public policy, are immoral, unethical, oppressive, unscrupulous or substantially
4 injurious to employees, and are without valid justification or utility, for which this Court should
5 issue equitable and injunctive relief, pursuant to Section 17203 of the California Business &
6 Professions Code, including restitution of wages wrongfully withheld.
7 25. By the conduct alleged herein, OLAN MILLS' practices were deceptive and
8 fraudulent in that OLAN MILLS' uniform practice was to represent to its employees that they
9 were not entitled to compensation for all hours worked, when in fact these representations were
10 false and likely to deceive, for which this Court should issue equitable and injunctive relief,
11 pursuantto Section 17203 of the California Business and Professions Code, including restitution
12 of wages wrongfully withheld.
13 26. By and through the unfair and unlawful business practices described herein,
14 OLAN MILLS has obtained valuable property, money, and services from the PLAINTIFF, and
15 from the Class Members, and has deprived them of valuable rights and benefits guaranteed by
16 law and contract, all to the detriment of the employees and to the benefit of DEFENDANT so
17 as to allow DEFENDANT to unfairly compete against competitors who comply with the law.
18 27. All the acts described herein as violations of, among other things, the California
19 Labor Code, California Code of Regulations, and the Industrial Welfare Commission Wage
20 Orders, are unlawful and in violation of public policy; and are immoral, unethical, oppressive,
21 and unscrupulous, are deceptive, and thereby constitute unfair, deceptive and unlawful business
22 practices in violation of the California Business and Professions Code, Sections 17200 et seq.
23 DEFENDANT's conduct was also deceptive in that DEFENDANT represented to the
24 PLAINTIFF and the others members of the CLASS thafthey were not entitled to report, record
25 and receive compensation for all hours worked, including overtime wages for hours worked in
26 excess of eight (8) in any workday and forty (40) in any workweek, and on the seventh (7th)
27 consecutive day. OLAN MILLS reduced the number of hours worked by employees by
28 systematically clocking out employees before the end of their shift. As a result, employees

CLASS ACTION COMPLAINT

-13-
 1 regularly worked off the clock without compensation and OLAN MILLS regularly recorded
2 reduced hours in the timekeeping system by not recording overtime hours worked in violation
3 of California law. Olan Mills also failed to provide mandatory uninterrupted thirty (30) minute
4 meal breaks to the PLAINTIFF and the Class Members each workday. This practice was a
5 direct result of OLAN MILLS' uniform policy and practice to not properly staff the portrait
6 studios so as to provide employees with uninterrupted thirty (30) minute meal breaks. As a
7 result, the PLAINTIFF and the Class Members forfeited mandatory meal breaks each workday
8 without additional compensation in accordance with DEFENDANT's strict, corporate and
9 uniform guidelines.
10 28. PLAINTIFF, and the Class Members, are entitled to, and do, seek such relief as
11 may be necessary to restore to them the money and property which DEFENDANT has acquired,
12 or of which the PLAINTIFF, and the Class Members, have been deprived, by means of the
13 described unlawful and unfair business practices. The relief sought in this cause of action
14 includes payment of wages for hours worked by the Class Members, which includes both wages
15 for straight time and overtime hours.
16 29. PLAINTIFF, and the Class Members, are further entitled to, and do, seek a
17 declaration that the described business practices are unfair and unlawful and that an injunctive
18 relief should be issued restraining OLAN MILLS from engaging in any of these unfair and
19 unlawful business practices in the future.
20 30. PLAINTIFF, and the Class Members, have no plain, speedy, and/or adequate
21 remedy at law that will end the unfair and unlawful business practices of OLAN MILLS.
22 Further, the practices herein alleged presently continue to occur unabated. As a result of the
23 unfair and unlawful business practices described herein, the PLAINTIFF, and the Class
24 Members, have suffered and will continue to suffer irreparable harm unless OLAN MILLS is
25 restrained from continuing to engage in these unfair and unlawful business practices. In
26 addition, compensation to the PLAINTIFF as well as to the other members of the CLASS.
27
28

CLASS ACTION COMPLAINT

-14-
 1 §EOONID CAUSE OF ACTION

2 For FaiDlllre 'fo Pay Overtime Wages

3 (Cal. Lab. Code §§ 510, 1194 & 1198)
4 (By PLA][N'fiFF and the CLASS and against DEFENDANT)
5 31. PLAINTIFF, and the Class Members, reallege and incorporate by this reference,
6 as though fully set forth herein, paragraphs 1 through 30 ofthis Complaint.
7 32. PLAINTIFF, and the Class Members, bring a claim for DEFENDANT's willful
8 and intentional violations of the California Labor Code, Sections 510, 1194, 1198, and
9 California Code of Regulations, Title 8, Sections 11010 and 11040 for DEFENDANT's failure
10 to correctly compensate employees for all the hours they worked as a result ofDEFENDANT's
II uniform and systematic policy and practice to instruct employees not to record the true number
12 of hours they worked each workday.
13 33. Pursuant to California Labor Code Section 204, other applicable laws and
14 regulations, and public policy, an employer must timely pay its employees for all hours worked.
15 Labor Code Section 201 and 202 require DEFENDANT to pay all wages due to an employee
16 whose employment terminated.
17 34. California Labor Code Section 510 further provides that employees in California
18 shall not be employed more than eight (8) hours per workday and forty (40) hours per workweek
19 unless they receive additional compensation beyond their regular wages in amounts specified
20 by law.

21 35. California Labor Code Section 1194 establishes an employee's right to recover
22 unpaid wages, including overtime compensation and interest thereon, together with the costs
23 of suit. Section 1198 of the California Labor Code states that the employment of an employee
24 for longer hours than those fixed by the Industrial Welfare Commission is unlawful.
25 36. During the CLASS PERIOD, OLAN MILLS maintained a uniform wage practice
26 of paying the PLAINTIFF, and the Class Members, without regard to the number of hours they
27 actually worked. As set forth herein, DEFENDANT's policy and practice was to intentionally
28 and uniformly deny timely payment of wages due, including overtime wages, PLAINTIFF and

CLASS ACTION COMPLAINT

-15-
 1 the Class Members, and OLAN MILLS in fact failed to pay these employees for all hours
2 worked.
3 37. OLAN MILLS' uniform pattern of unlawful wage and hour practices manifested,
4 without limitation, applicable to the CLASS as a whole, by implementing a uniform policy and
5 systematic practice that denied compensation to the Class Members, including the PLAINTIFF,
6 for all the hours they worked.
7 38. In committing these violations of the California Labor Code, OLAN MILLS
8 inaccurately under-reported the actual time worked and OLAN MILLS underpaid the actual
9 amount of hours worked, in violation of California Labor Code Section 206.5. OLAN MILLS
10 acted in an illegal attempt to avoid payment of earned wages, overtime compensation and other
11 benefits in violation of the California Labor Code, the Industrial Welfare Commission
12 requirements, and other applicable laws and regulations.
13 39. As a direct result ofOLAN MILLS' unlawful wage practices as alleged herein,
14 the PLAINTIFF and the Class Members did not receive proper compensation for all the hours
15 they actually worked for DEFENDANT's benefit.
16 40. California Labor Code Section 515 sets out various categories of employees who
17 are exempt from the overtime requirements of the law. None ofthese exemptions are applicable
18 to the PLAINTIFF and the Class Members. During the CLASS PERIOD, the PLAINTIFF and
19 the Class Members, were classified by DEFENDANT as non-exempt from overtime and
20 performed non-exempt job duties.

21 41. During the CLASS PERIOD, the PLAINTIFF and the Class Members were
22 classified as non-exempt from overtime by OLAN MILLS. None of the exemptions are
23 applicable to the CLASS based on their job duties. Further, the PLAINTIFF and the Class
24 Members are not subject to a valid collective bargaining agreement that would preclude the
25 causes of action contained herein this Complaint. Rather, the PLAINTIFF brings this Action
26 on behalf of himself and the members of the CLASS based on DEFENDANT's violations of
27 non-negotiable, non-waiveable rights provided by the state of California.
28 42. During the CLASS PERIOD, the PLAINTIFF and the Class Members worked

CLASS ACTION COMPLAINT

-16-
1 more hours than they were paid for and/or were paid less for hours worked that they were
2 entitled to, constituting a failure to pay all earned wages. During the CLASS PERIOD, the
3 PLAINTIFF, and the Class Members, regularly worked overtime hours.
4 43. DEFENDANT failed to accurately pay the PLAINTIFF and the Class Members
5 wages for all the hours they actually worked, including hours in excess of the maximum hours
6 permissible by law as required by the California Labor Code, Sections 510 and 1198, even
7 though the PLAINTIFF and the Class Members were regularly required to work, and did in fact
8 work, hours that OLAN MILLS never recorded, as evidenced by OLAN MILLS' business
9 records, timekeeping system and witnessed by employees.
10 44. By virtue of DEFENDANT's unlawful failure to pay compensation to the
11 PLAINTIFF and the Class Members accurately for the true number of hours they worked, the
12 PLAINTIFF and the Class Members have suffered and will continue to suffer an economic
13 injury in amounts which are presently unknown to them and which will be ascertained according
14 to proof at trial.
15 45. During the CLASS PERIOD, OLANMILLS knew or should have known that the
16 PLAINTIFF and the Class Members worked hours that they were not compensated for,
17 including hours in excess of eight (8) in any workday and forty (40) in any workweek. OLAN
18 MILLS systematically elected, either through intentional malfeasance or gross nonfeasance, not
19 to pay employees the correct amount for their labor as a matter of uniform, corporate policy,
20 practice and procedure, and to perpetrate this systematic scheme, OLAN MILLS refused to pay
21 employees for compensable work time.
22 46. In performing the acts and practices herein alleged in violation oflabor laws and
23 refusing to compensate the Class Members for all the hours they worked and provide the
24 requisite overtime compensation, OLAN MILLS acted and continues to act intentionally,
25 oppressively, and maliciously toward the PLAINTIFF, and toward the Class Members, with a
26 conscious of ami utter disregard for their legal rights, or the consequences to them, and with the
27 despicable intent of depriving them of their property and legal rights, and otherwise causing
28 them injury in order to increase corporate profits at the expense of the PLAINTIFF and the

CLASS ACTION COMPLAINT

-17-
 1 Class Members.
2 47. OLAN MILLS' respective failure to accurately record the hours worked by the
3 CLASS and pay the proper amount of overtime compensation to the PLAINTIFF and the Class
4 Members violates IWC Wage Orders No. 1 and 4 and the California Labor Code, Sections 510,
5 1194 and 1198, and is therefore unlawful.
6 48. Therefore, the PLAINTIFF, and the Class Members, request recovery of unpaid
7 overtime compensation according to proof, interest, statutory costs, as well as the assessment
8 of any statutory penalties against DEFENDANT, in a sum as provided by the California Labor
9 Code and/or other applicable statutes. In addition, to the extent wages are determined to be
10 owed to the PLAINTIFF and the Class Members whose employment has terminated, these
11 employees are further entitled to waiting time penalties under Section 203 of the California
12 Labor Code, which are sought herein.
13
14 THIRD CAUSE OF ACTION

15 For Failure to Provide Accurate l!temizel} Statements

16 [Cal. Lab. Code§ 226]
17 (By PLAINTIFF and the CLASS and against DEFENDANT)
18 49. PLAINTIFF, and the Class Members, reallege and incorporate by this reference,
19 as though fully set forth herein, paragraphs 1 through 48 of this Complaint.
20 50. Pursuant to the California Labor Code, Section 226, an employer must furnish
21 employees with an "accurate itemized statement in writing" showing all of the following items:
22 ( 1) gross wages earned, (2) total hours worked by the employee, except for any employee whose
23 compensation is solely based on a salary and who is exempt from payment of overtime under
24 subdivision (a) of Section 515 or any applicable order of the Industrial Welfare Commission,
25 (3) the number ofpiecerate units earned and any applicable piece rat~ if the employee is paid
26 on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of
27 the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive
28 dates of the period for which the employee is paid, (7) the name of the employee and his or her

CLASS ACTION COMPLAINT

-18-
1 social security number, except that by January 1, 2008, only the last four digits of his or her
2 social security number or an employee identification number other than a social security number
3 may be shown on the itemized statement, (8) the name and address of the legal entity that is the
4 employer, and (9) all applicable hourly rates in effect during the pay period and the
5 corresponding number of hours worked at each hourly rate by the employee. See California
6 Labor Code § 226.
7 51. At all relevant times mentioned herein, OLAN MILLS violated California Labor
8 Code Section 226 with respect to the PLAINTIFF and the Class Members, without limitation,
9 in that OLAN MILLS inaccurately or completely failed to record and report all the hours they
10 actually worked on their pay stubs, including straight time and overtime hours worked, as well
11 as their gross wages earned.
12 52. This failure was the result of OLAN MILLS' intentional refusal to institute an
13 immutable timekeeping system to accurately record all hours worked by employees and OLAN
14 MILLS' orders and instructions to the PLAINTIFF and the Class Members to exclude and/or
15 delete the true amount of hours they worked, including overtime hours, from the actual hours
16 that should have been reported in the timekeeping system, and this miscalculation of the
17 applicable regular rate as herein alleged.
18 53. OLAN MILLS knowingly and intentionally failed to comply with California
19 Labor Code Section 226, causing damages to the PLAINTIFF and the Class Members. These
20 damages include, but are not limited to, unpaid wages for all hours actually worked, the costs
21 expended calculating the true hours worked and the amount of employment taxes which were
22 not properly paid to state and federal tax authorities. These damages may be difficult to
23 estimate. Therefore, the PLAINTIFF, and the Class Members, may recover liquidated damages
24 of $50.00 for the initial pay period in which the violation occurred, and $100.00 for each
25 violation in subsequent pay period pursuant to California Labor Code Section 226, in an amount
26 according to proof at the time of trial (but in no event more than $4,000.00 for the PLAINTIFF
27 and each respective member of the CLASS herein), plus statutory costs, pursuant to California
28 Labor Code Section 226(g).

CLASS ACTION COMPLAINT

-19-
 1 PRAYER

2 WHEREFOR, the PLAINTIFF prays for judgment against each Defendant, jointly
3 and severally, as follows:
4 1. For the First Cause of Action:
5 A) That the Court certify the First Cause of Action asserted by the CLASS as a
6 Class Action pursuant to California Code of Civil Procedure, Section 382;
7 B) An order temporarily, preliminarily and permanently enjoining and restraining
8 DEFENDANT from engaging in similar unlawful conduct as set forth herein;
9 and,
10 C) Disgorgement of DEFENDANT's ill-gotten gains into a fluid fund for
11 restitution of the sums incidental to DEFENDANT's violations due
12 PLAINTIFF and the Class Members.
13 2. For the Second and Third Causes of Action:
14 A) That the Court certify the Second and Third Causes of Action asserted by the
15 CLASS as a Class Action pursuant to California Code of Civil Procedure,
16 Section 382;
17 B) Damages for the full amount of unpaid overtime wages pursuant to Labor
18 Code§ 1194;
19 C) Penalties payable to all terminated employees in the CLASS in accordance
20 with Cal. Lab. Code§ 203; and,
21 D) The greater of all actual damages or fifty dollars ($50) for the initial pay
22 period in which a violation occurs and one hundred dollars ($100) per each
23 member of the CLASS for each violation in a subsequent pay period, not
24 exceeding an aggregate penalty of four thousand dollars ($4,000), and an
25 award of costs for violations of Cal. Lab. Code § 226.
26 3. On all claims:
27 A) An award of interest, including prejudgment interest at the legal rate;
28 B) An award of penalties and cost of suit, but neither this prayer nor any other

CLASS ACTION COMPLAINT

-20-
 1 allegation or prayer in this Complaint is to be construed as a request, under any
2 circumstance, that would result in a request for attorneys' fees under Cal. Lab.
3 Code§ 218.5; and,
4 C) Such other and further relief as the Court deems just and equitable.
5
Dated: February 17, 2011 BLUMENTHAL, NORDREHAUG & BHOWMIK
6
7 By: "'\
-- )
----------·--·-·--------~------····----

~-==···-----
- - - -=--=-- ~=--·-
Norman B. Blumenthal ·---------~-
8 Attorneys for Plaintiff -----.____
9

10

11

12

13

14
15

16

17

18

19

20

21

22
23

24

25

26
27
28

CLASS ACTION COMPLAINT

-21-
 1 DEMANID FOR JlURY ']['RIAL
2 PLAINTIFF demands a jury trial on issues triable to a jury.
3
4 Dated: February 17, 2011
5
6 Norman B. B1"nrnentha1 ·· "'·-
Attorneys for Plaintiff
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

CLASS ACTION COMPLAINT

-22-