California Injury Attorney Blog

In a recent wage and hour case, the California Court of Appeal, Fourth Appellate District, issued a decision in a matter involving whether certain employees should be exempt from overtime pay requirements because their income was argued to be derived from commissioned sales. In Muldrow v. Surrex Solutions Corporation, the court determined that a class of workers, known as senior consulting service managers, were commissioned sales and were not entitled to payment for overtime in this instance.

As we have shared in prior posts, the way an employer classifies a worker, does not determine whether that worker is entitled to overtime pay and other benefits of employment. Sometimes employers try to avoid compliance with California's labor laws by misclassifying them to avoid paying the wages workers should be paid. In this case, the question was whether the employees were commissioned sales people which would exempt them from the benefit of overtime pay.

The plaintiffs in this case worked to fit job candidates to jobs. Some of the matches were made using cold calling and some were made using Surrex's databases. The plaintiffs were only paid commissions if the match was made and stuck. In certain instances, the employment candidates were essentially kept by Surrex itself as consultants. They were effectively loaned to Surrex's clients and in these placements, the plaintiffs were paid from a formula that resulted in the "adjusted gross profit" that Surrex received for the work.

Plaintiffs contended in this case that they really did not "sell" a product or service and should not be categorized as sales people. They took the position that their pay should not be categorized as "commissions." The time they spent identifying and recruiting new candidates was not sales in their view.

Surrex categorized them as commissioned sales people exempt from overtime pay. If they were categorized as other than sales, the commissioned sales exemption that precluded them from receiving overtime pay, would not apply.

The court's view, like that of the trial court, was that the activities performed to make these matches was sales related. The managers were deemed to be performing essentially sales activities and were exempt for overtime pay requirements.

Arguing that the formula for their compensation was complex and did not relate to the services sold and could not be deemed commissions, the plaintiffs sought to secure the payments they believed to be warranted under the law. The court did not agree and found that the commissions were related to the price of services sold. This conclusion led to the court's view that these were "commissions for purposes of the commissioned employees exemption (Cal.Code. Regs., tit. 8, § 11070, subd. (3)(D))."

It is possible that the California Supreme Court will accept this case for review given the importance of the decision and implications for workers who could be deemed as performing sales functions. Requirements such as overtime pay, wage and hour issues, rest breaks and related claims provide important protection for workers.

Hersh & Hersh represents consumers, workers, patients and accident victims. If you have any questions about your employment situation or whether you are being paid properly by your employer, please contact our law firm to speak confidentially and for no fee at all, with one of our lawyers.

Earlier this week, a San Francisco Muni bus driver was charged with misdemeanor vehicular manslaughter under California Penal Code section 192(c)(2) for an accident that occurred last August. A criminal charge in a case like this is somewhat unusual. The charge of misdemeanor vehicular manslaughter carries a jail term of up to one year.

What happened last August in a Castro district intersection is tragic. The bus, which was not carrying passengers at the time, was traveling to a new assignment when it made a left turn and struck a female pedestrian who was nearly to the curb. According to a report in SFGate, the driver was relatively new to Muni and was, in the District Attorneys' view, negligent in not seeing the young woman in the street. The deceased pedestrian was new to the city, she had moved here from Atlanta and was working for a local business.

Neither alcohol nor drugs were involved in the tragic accident. Sadly, it is believed that the pedestrian was distracted and did not see or hear the bus. In addition, the bus was not on a normal route, as the bus driver had determined his own route across town to get to his new assignment.

Whether there was a failure of communication between the driver and the central communications personnel as to the best way for him to get to where he needed to be to relieve a congested route, is not clear. This might become more clear as this matter goes forward in the courts.

Only one other pedestrian was killed last year by a Muni vehicle. According to reports, in the previous five years, there were an average of four to five pedestrian deaths involving Muni vehicles. In 2009, there was only one death.

When tragic events occur in our lives, often we need the support of experts who can help traverse legal and medical issues. The San Francisco injury law firm of Hersh & Hersh has helped families coping with serious accidents and wrongful death for four decades. If you have a situation that you would like to talk with us about, please contact our law offices for a free consultation with one of our lawyers about your legal rights.

The National Transportation Safety Board has been very clear with the public over the past few years about the dangers of using tech devices while driving. Recently, the agency asked that all states ban both calling and texting while driving. But there is something very new about this recommendation. The Board went beyond the previous recommendations and has asked states to include even hands-free devices in the ban.

California has always been a leader when it comes to safety, but we might be surprised to learn that the feds say banning all devices is really the best approach to safety. States have different laws in this area. California allows hands free conversations, but bans texting or hand held calls while driving. This law can be found at California Vehicle Code section 23123.

Probably most of us believe that when we are using a hands-free device while driving we are safe enough. After all, we talk with passengers in our vehicles while we are driving. However, there is reason to believe that there is a distinction with a difference when it comes to talking to someone while using a device. Our behavior changes in subtle ways and when we talk with a passenger in our vehicle, that person can also pay attention to the road and warn us of hazards. A person on the phone with us cannot do that.

Although the NTSB does not have the authority to make the states enact a prohibition on the use of mobile devices -- some states might consider enacting a ban given the strong recommendation made by the feds. The poster case for this is a terrible tragedy that occurred a couple of years ago. Two people were killed and 40 were injured when a person who had been texting while driving, gave rise to a huge and tragic pile-up accident in Missouri. With more accidents resulting from texting and driving, one can only expect the focus on how to stop this practice, will become more in focus over time.

What the NTSB wants us to do is concentrate on our driving. As noted in the statistics from the agency, over 3.000 people die annually due to distracted driving. The agency warns that a routine trip can become tragic in a distracted driving situation. If we put down these devices, many deaths and injuries would be avoided.

If you have been injured in an auto or other motor vehicle accident, the California injury lawyers of Hersh & Hersh can help evaluate your legal rights. Contact us for a free consultation with one of our experienced personal injury and accident lawyers. We have helped many injured victims in our decades of law practice and we want to help you and your family.

Earlier this week, an Alameda woman was arrested for having allegedly assisted a teen in buying alcohol late last year. The teen was a friend of the woman's child.

Hours after the alcohol was purchased, the teen was dead. She had consumed alcohol and was a passenger in a vehicle that was driven by another intoxicated teen who had been at a party where, presumably, the alcohol was consumed.

As California auto accident lawyers, we are aware of the terrible impact that drinking and driving can have. Families suffer tremendously when a loved one is injured or tragically killed as a result of this dangerous behavior.

The Alameda woman has been arrested on suspicion of furnishing alcohol to a minor. The South San Francisco store clerk and co-owner where the purchase was made has also been arrested. The teen is alleged to have purchased the alcohol, but this is disputed by the store clerk's attorney who reportedly told SF Gate: "[t]here's no evidence that any alcohol was sold directly" to the teen. He noted that the adult made the purchase.

This tragedy unfolded in the early morning hours of the day after the alcohol was purchased. The teen was riding in a vehicle driven by a 19-year-old who was driving at 60 miles per hour on Highway 101. He was unable to stop in time to avoid traffic that was stopped due to a previous crash. Veering at a high rate of speed into the next lane, he rear-ended the car in front of his vehicle. The deceased teen who was riding in the back seat of this vehicle was thrown into the front of the car. She died later at a local hospital.

The teen driver's blood-alcohol level was 0.15 percent, nearly twice the legal limit. He has now pleaded no contest to several charges that include felony drunken driving causing injury, as well as misdemeanor vehicular manslaughter without gross negligence. These crimes carry a sentence of up to four years and four months in prison.

Impaired judgment is only one impact of drinking and driving. Mothers Against Drunk Driving has been battling this behavior for years and has gathered statistics on its website state by state and keeps these up to date. California ranks 21st in DUI deaths nationally with 29 percent of the our fatal road deaths attributed to DUI. California requires ignition interlocks for all convicted drunk drivers in only four of our counties: Alameda, Los Angeles, Sacramento, and Tulare.

The San Francisco law firm of Hersh & Hersh has a long history of improving the public's health and safety. We have a long and stellar history of creating protections for victims of injury.

If you have any questions about our representation of victims and their families in personal injury and auto accident cases, contact our California office to speak directly with one of our attorneys.