Custis Law, P.C. has filed a class action lawsuit against Tocaya Organica and Toca Madera for violations of California’s Labor Code and Unfair Competition Law. Tocaya Organica is a chain of fast-casual Mexican restaurants in Southern California. Toca Madera is an affiliated upscale, full-service Mexican restaurant. Tocaya Organica and Toca Madera are owned by West Hollywood-based The Madera Group.
The lead plaintiffs are Layonel Del Prado, Ammon Mendes and Kevin Gonzalez, who are former employees of Tocaya Organica or Toca Madera. The lawsuit was filed on behalf of the plaintiffs and all current and former employees who worked for Tocaya Organica, Toca Madera, Tocaya Management LLC, and any affiliated restaurants, in California between June 16, 2016 and the present.
The complaint alleges that Tocaya Organica and Toca Madera (1) failed to pay minimum wages and overtime wages for all hours worked because employees were required to work “off-the-clock” and because not all working time was recorded; (2) failed to pay minimum wages and overtime wages for all hours worked because the defendants “shaved time” by deliberately editing time cards to reduce the total amount of hours worked; (2) failed to provide legally required, off-duty meal periods; (3) failed to provide legally required off-duty rest periods; (4) failed to reimburse employees for business-related expenses they incurred at the defendants’ direction, including for the use of their cell phones and their personal vehicles; (5) failed to provide accurate wage statements; and (6) failed to pay wages when due at termination or resignation. The plaintiffs will add a cause of action against the defendants for violations of California’s Private Attorneys General Act, commonly known as PAGA.
The class action is seeking all available remedies, including back wages, statutory penalties and civil penalties, on behalf of the current and former employees and the State of California. The class action lawsuit is pending in the Los Angeles County Superior Court, Case No. 20STCV23013.
Employers Cannot Shift The Cost Of Running Their Business To Their Employees
California law prohibits employers from shifting their cost of doing business and operating expenses to their employees. Specifically, Labor Code Section 2802 requires the employer to reimburse employees for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.”
As alleged in the complaint, Tocaya Organica and Toca Madera required employees to incur business-related expenses in several ways:
- Tocaya Organica and Toca Madera required employees to spend their own money to use their personal cell phones and data plans for work purposes; and
- Tocaya Organica and Toca Madera required certain employees to spend their own money to use their personal vehicles for work purposes.
California law regarding cell phone use is clear: If an employee is required to make work-related calls on a personal cell phone, or to otherwise use a personal cell phone for work-related purposes, then the employee is incurring an expense that must be reimbursed. The complaint alleges that Tocaya Organica and Toca Madera failed to reimburse its employees for the expenses they incurred in using their personal cell phones and vehicles for work purposes.
Off-The-Clock Work: Failing To Pay For Hours Worked But Not Recorded
Off-the-clock work is work that an employee does that is not recorded “on the clock” and is, thus, not properly compensated. If an employer requires employees to do anything after they’ve punched out for the day, or before they’ve punched in, the employees are working off-the-clock.
California employers are required to pay an employee for every minute that the employee is subject to the employer’s control. The California Supreme Court recently noted that “a few extra minutes of work each day can add up.” In a case called Troester v. Starbucks Corp., the court observed that one employee was seeking payment for 12 hours and 50 minutes of compensable work over a 17-month period, which amounts to $102.67 at a wage of $8 per hour. The Court held “That is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares.”
The Tocaya Organica and Toca Madera complaint alleges that the restaurants required employees to work off-the-clock in several ways including that: (1) the restaurants required employees to access scheduling apps like Homebase and Hotschedules on their cell phones on a regular basis; (2) the restaurants required employees to review and respond to business-related messages while they were off-the-clock on a regular basis; and (3) the restaurants required employees to clock out for meal periods but to continue working while they were off-the-clock.
Time Shaving: When Employers Edit Time Sheets To Reduce An Employee’s Time
“Time shaving” refers to the unlawful practice of editing an employee’s time sheets to eliminate time. For example, some unscrupulous employers deliberately edit their employees’ time cards to delete any record of overtime hours. For example, if an employee worked 8 hours and 6 minutes, the employer may change the employee’s time card to show that the employee worked only 8 hours.
Other unscrupulous employers edit their employees’ time cards to eliminate meal period penalties. In California, for example, employers are required to provide employees with an off-duty, thirty-minute meal break before the end of the employee’s fifth hour of work. If the employer only provides a late meal break, the employer has violated California law and is required to pay the employee an extra hour of pay as a penalty for its failure to provide a timely meal break. To avoid paying that penalty, some employers deliberately change their employees’ time records so that it appears that the employee received a timely meal break when, in fact, they did not.
The Tocaya Organica and Toca Madera class action complaint alleges that the restaurants engaged in both forms of time shaving: (1) deliberately editing time records to eliminate hours worked including overtime hours; and (2) intentionally editing time records to delete any record of missed, late and/or shortened meal periods.
For more information about the lawsuit against Tocaya Organica and Toca Madera restaurants, or for questions about other restaurants, call (213) 863-4276 to speak to an experienced California employment attorney today.
About Custis Law, P.C.
Custis Law, P.C. is an employment law firm with offices located in Los Angeles County, Orange County and San Bernardino County. The firm represents employees on a contingency basis for violations involving unpaid wages, meal and rest break violations, discrimination, sexual harassment, wrongful termination and other types of unlawful workplace conduct.