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Perez v. Tyler Residential Care, Inc.

United States District Court, Ninth Circuit

October 17, 2013

THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
TYLER RESIDENTIAL CARE, INC., a California corporation; BENJAMIN PENALOSA and OFELIA PENALOSA, individuals. Defendants.

JANET M. HEROLD, Regional Solicitor, Daniel J. Chasek, Associate Regional Solicitor, NATALIE NARDECCHIA (CSBN 246486), Trial Attorney United States Department of Labor Office of the Solicitor, Los Angeles, CA, Attorneys for Plaintiff, Thomas E. Perez, Secretary, U.S. Department of Labor.

M. PATRICIA SMITH, Solicitor of Labor.

BENJAMIN PENALOSA, OFELIA PENALOSA, Defendants, as an individual and as managing agent of Tyler Residential Care, Inc., a corporation.

STEPHEN A. MADONI, Attorney for Tyler Residential Care, Inc., a corporation.

CONSENT JUDGMENT & ORDER

DEAN D. PREGERSON, District Judge.

Plaintiff Thomas E. Perez, Secretary of Labor, United States Department of Labor ("Plaintiff" or the "Secretary") having filed his Complaint, and Defendants Tyler Residential Care, Inc., a California corporation, and Benjamin Penalosa and Ofelia Penalosa, individuals (collectively "Defendants"), having been duly advised on the proceedings and having agreed to resolve the matters in controversy in this civil action, consent to the entry of this Consent Judgment in accordance herewith:

A. The Secretary has filed a Complaint alleging that Defendants violated pro-visions of Sections 6, 7, 11(c), 15(a)(2) and (5) of the Fair Labor Standards Act of 1938, as amended ("FLSA" or the "Act"), 29 U.S.C. §§ 207, 211(c), 215(a)(2) and (5).

B. Defendants have appeared, have obtained legal counsel, and acknowledge receipt of a copy of the Secretary's Complaint.

C. Defendants waive issuance and service of process and waive answer and any defenses to the Secretary's Complaint.

D. The Secretary and Defendants waive Findings of Fact and Conclusions of Law, and agree to the entry of this Consent Judgment in settlement of this action, without further contest.

E. Defendants admit that the Court has jurisdiction over the parties and subject matter of this civil action and that venue lies in the Central District of California.

F. Defendants admit that they failed to pay their employees for all hours worked, in violation of the requirements of the FLSA. Defendants agree to compensate their employees for all hours worked regardless of whether the work was authorized or not. Defendants agree that all hours need to be compensated, including but not limited to time for in-service, interrupted sleep time, travel time, grocery shopping time, no staff coverage time, and additional hours worked for holidays while Defendants' clients are on the premises.

G. Defendants admit that they failed to accurately document hours worked in violation of the requirements of the FLSA. Defendants agree to accurately document all hours worked for all of their employees, and to maintain such records for two years for all nonexempt employees. Defendants agree to keep all earnings records for three years.

H. Defendants agree that it is a violation of the FLSA to take deductions from their employees' pay based on an employee's immigration status or nationality. Defendants agree to refrain from making any such illegal deductions.

I. Defendants admit that they failed to display in the workplace the Employee Polygraph Protection Act poster and Minimum Wage poster as required by 29 C. F. R. § 801.6 and 29 U.S.C. § 211. Defendants agree to display these posters in conspicuous locations at each of their facilities where employees are likely to see them.

J. Defendants understand and agree that demanding or accepting any of the funds due employees under this Judgment or threatening any employee for accepting money due under this Judgment or for exercising any of their rights under the FLSA is specifically prohibited by this Judgment and may subject the Defendants to equitable and legal damages, including punitive damages and civil contempt.

It is therefore, upon motion of the attorneys for the Secretary, and for cause shown,

ORDERED, ADJUDGED, AND DECREED that pursuant to Section 17 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201 et seq., (hereafter the "Act" or the "FLSA"), that Defendants Tyler Residential Care, Inc., a California corporation, Benjamin Penalosa and Ofelia Penalosa, their officers, agents, servants, employees, and all persons in active concert or participation with them be, and they hereby are, permanently enjoined and restrained from violating the provisions of the Act, in any of the following manners:

1. Defendants shall not, contrary to Sections 6 and 15(a)(2) of the Act, pay any of their employees who in any workweek are engaged in commerce or in the production of goods for commerce or who are employed in an enterprise engaged in commerce or in the production of goods for commerce, within the meaning of the Act, wages at a rate less than $7.25 per hour (or at a rate less than such other applicable minimum rate as may hereinafter be established by amendment to the Act).

2. Defendants shall not, contrary to Sections 7 and 15(a)(2) of the Act, employ any of their employees who in any workweek are engaged in commerce or the production of goods for commerce, or who are employed in an enterprise engaged in commerce or in the production of goods for commerce, within the meaning of the Act, for workweeks longer than forty hours, unless such employee receives compensation for his or her employment in excess of forty hours at a rate not less than one and one-half times the regular rates at which he or she is employed.

3. Defendants shall not fail to make, keep, preserve, make available to authorized agents of the Secretary for inspection, transcription, and/or copying, upon their demand for such access, the records of its employees and of the wages, hours, and other conditions and practices of employment maintained, as prescribed by the regulations issued, and from time to time amended, pursuant to Sections 11(c) and 15(a)(5) of the Act and the implementing regulations found in 29 C.F.R. Part 516.

4. Defendants shall make, keep, and preserve accurate records of the wages, hours, and other work conditions and practices of each and every individual who performs any work for Defendants at their current or future residential care home facilities. Defendants shall maintain earnings records for three years. For all other records, Defendants shall keep the records for two years for all nonexempt employees.

5. Defendants shall not fail to pay their employees for all hours worked, regardless of whether the work was authorized or not. Defendants shall compensate their employees for all hours worked, including but not limited to time for in-service, interrupted sleep time, travel time, grocery shopping time, no staff coverage time, and additional hours worked for holidays while Defendants' consumers are on the premises.

6. IT IS FURTHER ORDERED that Defendants shall not withhold payment of $279, 577.49 which represents the unpaid minimum wage and overtime compensation hereby found to be due during the period from April 1, 2010 to April 1, 2013 ("Subject Period") to those current and former employees of Defendants named in Exhibit A, attached hereto and made a part hereof, in the amounts set forth therein.

7. Defendants shall not withhold payment of $18, 700.00, which represents unpaid civil money penalties assessed against Defendants and finally determined, pursuant to the authority granted in Section 16(e) of the FLSA, 29 U.S.C. § 216(e), for violations of the provisions of the FLSA during the Subject Period.

8. Defendants and any individual or entity acting on Defendants' behalf or at their direction, shall not request, solicit, suggest, or coerce, directly, or indirectly, any employee to return or to offer to return to Defendants or to someone else for Defendants, any monies in the form of cash, check, or any other form, for wages previously due or to become due in the future to said employee under the provisions of this Consent Judgment or the FLSA; nor shall Defendants accept, or receive from any employee, either directly or indirectly, any monies in the form of cash, check, or any other form, for wages heretofore or hereafter paid to said employee under the provisions of this Consent Judgment or the FLSA; nor shall Defendants discharge or in any other manner discriminate, solicit or encourage anyone else to discriminate, against any such employee because such employee has received or retained monies due to him or her from Defendants under the provisions of this Consent Judgment or the FLSA.

FURTHER, JUDGMENT IS HEREBY ENTERED, pursuant to Section 16(c) of the FLSA, in favor of the Secretary and against Defendants in the total amount of $577, 854.98, which is comprised of unpaid minimum wage and overtime compensation owed by Defendants in the amount of $279, 577.49, an additional equal amount as liquidated damages, and unpaid civil money penalties assessed against Defendants.

9. Defendants shall pay to the Secretary the gross amount of back wages due, as set forth in greater detail in Paragraph 12, infra, from the total amount of $279, 577.49, which represents the unpaid gross minimum wage and overtime compensation hereby found to be due for the Subject Period to the current and former employees of Defendants named in Exhibit A, attached hereto and made a part hereof.

10. Pursuant to authority expressly provided in Section 16 of the FLSA, 29 U.S.C. § 216, Defendants shall further pay to the Secretary as liquidated damages the additional sum of $279, 577.49 hereby found to be due for the Subject Period to the current and former employees named in Exhibit A, attached hereto and made a part hereof.

11. Pursuant to the authority granted in Section 16(e) of the FLSA, 29 U.S.C. § 216(e), Defendants shall further pay to the Secretary as unpaid civil money penalties assessed against Defendants the additional sum of $18, 700.00.

12. The provisions of this Consent Judgment shall be deemed satisfied when Defendants comply with the following payment provisions:

a. As soon as practicable, and by no later than September 30, 2013, Defendants shall deliver to the Wage and Hour Division, United States Department of Labor, Attn: Angelica Garcia, 100 N. Barranca Ave., Suite 850, West Covina, CA 91791, a schedule containing: (1) the names, Social Security numbers, last known home addresses, last known home telephone numbers, last known mobile telephone numbers.

b. As soon as practicable, and by no later than September 30, 2013, Defendants shall make payment of the back wages and liquidated damages described in Paragraphs 9 and 10, supra, and the unpaid civil money penalties described in Paragraph 11, supra, by delivering a cashier's check or money order. The check shall include the firm name of "Tyler Residential Care Inc." and shall be made payable to the order of the "Wage & Hour Div., Labor." Defendants shall deliver this payment to Wage and Hour Division, United States Department of Labor, Attn: Angelica Garcia, 100 N. Barranca Ave., Suite 850, West Covina, CA 91791. 13. In the event of a default in the timely making of the payment specified herein, the full gross amount outstanding due under this Consent Judgment, plus post-judgment interest at the rate of 10% per year from the date of this Consent Judgment until the amount of this Consent Judgment is paid in full, shall become immediately due and payable directly to the U.S. Department of Labor by certified check to the Wage and Hour Division ("Wage and Hour"). For the purposes of this paragraph, a "default" is deemed to occur if payment is not delivered within five (5) calendar days of the due date.

14. Upon receipt of the payment detailed in Paragraph 12(b), supra, the Secretary shall distribute payments to the persons named in the attached Exhibit A, or to their estates if that be necessary, in his sole discretion, and any monies not so paid within a period of three (3) years from the date of its receipt, because of an inability to locate the proper persons or because of their refusal to accept it, shall be then deposited in the Treasury of the United States, as miscellaneous receipts, pursuant to 29 U.S.C. § 216(c).

15. Defendants, their officers, agents, servants, and employees and those persons in active concert or participation with them, shall not in any way directly or indirectly, demand, require or accept any of the backwages, liquidated damages or the funds in restitution of the retaliation from any of the employees listed on the attached Exhibit A. Defendants shall not threaten or imply that adverse action will be taken against any employee because of their receipt of funds due under this Judgment. Violation of this paragraph may subject the defendants to equitable and legal damages, including punitive damages and civil contempt.

16. Defendants, their officers, agents, servants, and employees and those persons in active concert or participation with them, shall not in any way retaliate or take any adverse employment action, or threaten or imply that adverse action will be taken against any employee who exercises or asserts his or her rights under the FLSA or provides information to any public agency investigating compliance with the FLSA. Violation of this paragraph may subject the defendants to equitable and legal damages, including punitive damages and civil contempt.

17. The filing, pursuit, and/or resolution of this proceeding with the filing of this Consent Judgment shall not act as, or be asserted as, a bar to any action under Section 16(b) of the FLSA, 29 U.S.C. § 216(b), as to any employee not named on the attached Exhibit A, nor as to any employee named on the attached Exhibit A for any period not specified herein for the back wage recovery provisions.

18. Each party shall bear all fees and other expenses (including court costs) incurred by such party in connection with any stage of this proceeding.

19. IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this action for purposes of enforcing compliance with the terms of this Consent Judgment.

IT IS SO ORDERED.

EXHIBIT A

                                                                                               Total
                                       BW Start                             Total BW           Liquidated
Last Name          First Name          Date             BW End Date         Due (Gross)        Damages
Agraan             Evangeline          03/12/2011       03/09/2013          $1,154.39          $1,154.39

Agraan             Marline             08/27/2011       03/23/2013          $2,365.26          $2,365.26

Alvarez            Francis             03/05/2011       03/12/2011             $56.00             $56.00

Binuya             Dolores             02/11/2012       03/23/2013            $344.00            $344.00

Castillo           Arsenia             04/14/2012       03/23/2013            $782.18            $782.18

Castillo           Cleofe              02/16/2013       03/23/2013            $380.58            $380.58

Chau               Kim                 03/12/2011       04/23/2011            $339.74            $339.74

Cruz               Jasfer              03/12/2011       05/21/2011             $52.92             $52.92

Cruz               Nenita              03/12/2011       03/23/2013         $24,898.77         $24,898.77

Cruz               Nijel               03/12/2011       03/09/2013          $3,211.13          $3,211.13

De Vera            Lydia               06/16/2012       06/16/2012            $299.50            $299.50

Dela Cruz          Eliza               04/23/2011       04/23/2011             $81.00             $81.00

Dela Cruz          Narciso             03/12/2011       04/21/2012          $1,460.53          $1,460.53

Devenecia          Kimberly            06/11/2011       12/17/2011             $64.00             $64.00

Durham             Erica               07/30/2011       07/30/2011            $312.97            $312.97

Eguilos            Cesar               03/12/2011       03/23/2013         $10,944.51         $10,944.51

Eguilos            Cirilo              04/09/2011       03/09/2013          $1,066.55          $1,066.55

Eguilos            Jenia               03/12/2011       03/23/2013         $12,800.86         $12,800.86

Eguilos Jr.        Cesar               03/26/2011       12/01/2012          $1,184.15          $1,184.15

Estoesta           Joevie              04/09/2011       06/04/2011            $483.92            $483.92

Estoesta           Romeo               03/19/2011       03/26/2011             $28.00             $28.00

Framo              Maria Gladys        03/12/2011       05/05/2012          $9,895.71          $9,895.71

Fuentes            Evalyn              03/12/2011       05/05/2012         $11,739.36         $11,739.36

Guillermo          Lucita              12/22/2012       03/23/2013            $337.50            $337.50

Langub             Monalisa            03/12/2011       05/05/2012          $8,818.71          $8,818.71

Langub             Stephen             04/09/2011       05/05/2012          $7,880.43          $7,880.43

Legaspi            Virgilio            08/27/2011       03/10/2012            $600.21            $600.21

Lulu               Lourdes             06/11/2011       05/05/2012          $7,021.50          $7,021.50

Manabat            Enrique             03/12/2011       03/23/2013          $5,146.22          $5,146.22

Manabat            Rosario             03/12/2011       03/23/2013         $19,923.30         $19,923.30

Manabat Jr.        Enrique             03/12/2011       03/23/2013         $20,517.60         $20,517.60

Marcellana         Ligaya              03/26/2011       09/10/2011            $265.45            $265.45

Martillano         Dolores             03/12/2011       03/23/2013            $224.19            $224.19

Morales            Gigi                08/06/2011       04/21/2012          $2,140.66          $2,140.66

Morla              Rosalindalinda      03/12/2011       03/23/2013         $17,394.62         $17,394.62

Onierro            Mell                03/12/2011       02/09/2013         $27,032.52         $27,032.52

Ordillano          Flordeliza          04/09/2011       02/09/2013         $19,711.03         $19,711.03

Paras              Helen               03/09/2013       03/23/2013            $274.36            $274.36

Pescador           Maximina            11/19/2011       03/09/2013          $3,159.21          $3,159.21

Rodriguez          Juana               06/04/2011       03/23/2013            $624.35            $624.35

Sarmiento          Zenaida             05/19/2012       05/19/2012             $55.25             $55.25

Soriano            Anita               03/12/2011       02/11/2012          $1,708.73          $1,708.73

Tamundong          Angelita            10/29/2011       12/03/2011            $108.00            $108.00

Valmeo             Catalina            03/12/2011       03/23/2013         $15,725.04         $15,725.04

Valmeo             Clifford            03/12/2011       04/21/2012         $16,232.70         $16,232.70

Valmeo             Irene               03/12/2011       01/26/2013          $2,551.90          $2,551.90

Valmeo             Marianne            03/12/2011       01/12/2013          $1,037.46          $1,037.46

Valmeo             Teofilo             03/12/2011       03/23/2013         $15,756.89         $15,756.89

Villadores         Florencia           07/23/2011       03/23/2013          $1,383.63          $1,383.63

                                                                          $279,577.49        $279,577.49

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