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.

This past year has been very eventful for the San Francisco, California injury lawyers who sponsor the California Injury Attorney Blog. We have represented injured consumers for four decades, in cases in a broad array of matters, involving workers' rights in wage and hour claims, defective medical devices such as defective hip replacements, and accidents of all kinds that have adversely impacted the lives of our clients. We are gratified by the work we do to help our clients through the most difficult experiences of their lives.

Over this past year, we have brought our readers stories and information about serious potential for injury related to medical devices, drugs and other products. We have told you about infant and child safety and recalls related to products that have, or might, cause injury and harm to kids. We have informed you about the victims of defective medical devices, such as defective DePuy Hip Implants, and pharmaceuticals.

We informed you about the hearings of an FDA Advisory Committee in Washington DC that concerned the injuries to women in the use of transvaginal surgical mesh for pelvic organ prolapse and urinary stress incontinence. We attended these hearings to keep you apprised and up-to-date on the status of this growing area of concern for women, as failures and injuries of this surgical method were found to carry too many risks. We told you about the alternative ways of making these repairs for women suffering from various medical issues that do not lead to the great potential for new injuries from surgery.

We successfully litigated several very important wage and hour cases, including those involving Terminix and Marcus & Millichap. In these actions, we were able to secure employees of these companies the wages they were due and had not been paid.

In the Terminix matter, we presented as co-counsel, a landmark case that involved the company's failure to provide rest breaks and required inspectors to work more than the number of hours per day allowed under California law. The inspectors also worked nights and weekends without additional compensation, which was a failure to pay overtime wages. The jury returned a verdict that protected workers' rights.

We settled a major case involving a man who suffered a Mild Traumatic Brain Injury that was caused by a rear-end collision. The significance of this matter has broad implications for those who have been seriously injured, but whose injuries in the past have been ignored because, for example, they do not show up on an MRI. We helped determine and prove that this man had suffered major memory loss, impaired cognition and other debilitating problems, due to a rear-end collision. This injury is only now becoming better understood by experts in brain injury.

We will continue to dedicate our law practice the protection of consumers and the public. If you have any questions about what we do or how we might help you, please contact our law firm to speak with one of our lawyers. Our consultation on any injury or consumer matter is free of charge.

The lawyers of Hersh & Hersh wish all our readers a very happy and healthy 2012.

For many years, the health care workers that provide home care to the elderly and disabled have been unprotected under wage and hour laws. Yesterday, President Barack Obama announced that this situation is "inexcusable" and has called for a major change in the support provided to these caregivers.

Home health care workers that care for the elderly and disabled often receive less than the minimum wage. The law does not require otherwise which means there is nothing these workers can really do to receive fair pay for their hard and important work. A total of 29 states do not mandate the payment of minimum wage and overtime for home health care workers.

Many of us have elderly parents or disabled family members who need this type of in-home care. President Obama has endorsed a new Labor Department rule that would require home health care workers to receive minimum wages, plus overtime.

Since the labor force involved in this type of care is actually fairly large -- and a total of 2 million health care workers are being employed without the benefit of wage protections, the change is going to make a big difference for these workers. During the announcement, the President was flanked by the hard working men and women who take care of our family members in their homes. Describing them as working "their tails off" he noted that fair pay should be provided to them.

With an aging population, more and more Americans will need home health care. It is very important that all workers are paid fairly and are protected under the law. Hersh & Hersh applauds this effort on the part of the White House to ensure fair wages for American workers. In our experience as wage and hour lawyers, it is our honor to have helped many workers receive the pay they are entitled to under the law. If you have a concern that you might not be receiving appropriate pay, please contact our San Francisco wage and hour law firm for a free consultation with regard to your rights. We have helped many workers receive their proper wages and benefits.

The lawyers of Hersh & Hersh who sponsor the California Injury Attorney Blog served as co-counsel in a landmark win in federal court this week involving wage and hour claims. A federal jury rendered a verdict that is a victory for workers' rights.

In this case, the termite inspectors employed by Terminix (which is part of Terminix International, Inc.) presented a case to the jury that involved the company's failure to provide rest breaks, required work for greater than the number of hours per day allowed by California law and resulted in wage and hour violations. The inspectors also worked nights and weekends without additional compensation, which amounted to a failure by the company to pay overtime wages. This is not permitted under California law.

In September, we posted on a related case in which a class action was settled for $1.5 million that involved 1200 termite inspector trainees who were working in California. A United States District Court Judge approved a $1.5 million settlement, but several of the employees must make their claims in arbitration.

Overtime pay claims involving wages and hours are generally settled by companies. But when profits are carried on the backs of workers, companies might be reluctant to settle out of court and take their chances litigating the matter in court.

These cases will help all workers who are not being paid according to the laws that protect them. Such requirements as overtime pay, wage and hour issues, rest breaks and related claims will perhaps be taken more seriously by other employers who are not following the laws and regulations that ensure the protection of workers in many cases.

Hersh & Hersh is proud to continue its longstanding history of groundbreaking litigation in all areas that protect consumers, workers, patients and accident victims. If you have any questions about your employment situation and 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.

Last week, a United States District Court judge approved a major wage and hour settlement in a case involving more than 1,200 trainee inspectors with the Terminix Company in California. The lawyers of the California Injury Attorneys Blog worked as co-counsel to secure the $1.5 million settlement and continue to represent other Terminix employees who were not included in the class. Those workers will be seeking recovery against the company through arbitration proceedings. This case is another example of the importance to workers in pursuing their right to proper wages.

Terminix argued before the court that termite inspections are part of the sales process and therefore should not be subject to overtime pay for workers. The pest control company had sought to characterize their free inspections as a sales pitch or giveaway in an attempt to exempt the extra hours worked by inspectors that were in excess of the 40-hour work-week provided for by California law. But the court rejected this argument and said that their services were not in fact sales activity.

Inspector trainees of the Terminix company sometimes work long hours - even longer than what are normally long hours. Prior to the class action, when the trainees worked longer hours, they did not receive rest or meal breaks or overtime pay. The settlement will result in the class member trainees receiving about $800 each in gross pay. Terminix will pay their share of employment taxes as well. The settlement covers trainee employees who worked as inspectors.

All those who worked as inspectors for Terminix have a claim for being misclassified as exempt from overtime and for failing to reimburse expenses, such as vehicle mileage. Due to a recent United States Supreme Court ruling, which upheld a company's right to impose arbitration on employees, most of the employees must arbitrate their claims. Those inspectors who were not trainees, will now pursue their claims in arbitration. Unlike the trainees, the inspectors signed arbitration agreements. A few will be trying their cases before the court.

Arbitrations are likely to take some time, as there are 1,800 who were employed during the period of time when the company did not classify them properly. The inspectors were classified as performing a sales function when they were performing certain services and the company did not pay them overtime because of that classification. But the court ruled that those services were not part of the sales process, as claimed by the company. Those inspectors will now have the opportunity to show the amount of time they were inspecting and doing other services for customers (other than sales) for which they should be paid overtime when they worked longer hours than the law allows without extra pay.

Hersh & Hersh represents many inspectors that are already making claims in arbitration and expects many more will file arbitration claims. As wage and hour attorneys, we fight for workers' rights to receive the pay and benefits to which they are entitled under the law. Please contact our law firm for a free consultation with one of our expert lawyers to review your employment and pay situation.

A recent decision by the Ninth Circuit Court of Appeals is good news for victims of wage and hour violations. As California wage and hour lawyers, we want to keep our readers informed of the law in this area.

In a case involving a Nevada employee, the court answered the following question: when a class representative rejects an offer of judgment of the full amount of his or her claim, and that offer precedes the filing of a motion for class certification, is the class action complaint still viable? The court said that it is. The case was decided by the Ninth Circuit, which also includes California, so the law of this case would also apply to California employees.

In the Spring of 2009, the plaintiff filed a class action complaint in his state (Nevada) against his employer for failing to pay overtime and minimum wages to him and those similarly situated. Among the allegations in the complaint were violations of the Fair Labor Standards Act (FLSA), violations of Nevada's labor laws and breach of contract.

The defendant employer removed the case to federal court, which is how the Ninth Circuit ended up ruling on the case. The federal trial court began discovery, but the plaintiff had difficulty getting the information needed from the defendant to try to obtain class certification. A class action is a procedure that is applicable when many people have been injured in the same way. The injured parties can ask the court to allow "class certification" so that all plaintiffs who have been injured can proceed together.

In this case, the plaintiff tried to get information from the defendant to enable him to seek class certification to make it possible for the case to go forward with more injured victims. But the defendant stalled and would not provide the information requested. The plaintiff asked the court to make the defendant provide the information and the court said it would decide this later, but also extended what is called "discovery" so that the parties would have time to learn what they needed to learn from one another.

While all of this was happening, the defendant made an offer to resolve this case by offering judgment against it in favor of the plaintiff. But the plaintiff did not accept the offer, even though it would have compensated him fully for his monetary claim. The defendant employer than asked the court to dismiss the action, saying that the class action was no longer viable since it had made this offer, it was rejected and the plaintiff had not yet asked that the class be certified. The trial court said that the plaintiff did not timely file the request for class action certification and dismissed the case, saying it was "moot."

But the Ninth Circuit ultimately ruled that even though the plaintiff had rejected the offer of judgment and he had not yet moved for class certification, the case could proceed because the class certification motion was still timely. What this means is the plaintiff can still proceed to ask the court to certify the class action.

The lawyers of Hersh & Hersh dedicate their practice to protecting injured consumers and employees. If you have been injured by your employer and are not receiving proper wages, or if you are concerned that you are not receiving overtime pay, please contact our law firm. We provide free consultations to evaluate legal matters such as wage and hour violations.

The San Jose Mercury News reports that the California Supreme Court issued a ruling today that is a victory for those who work for California companies, but live elsewhere. As experienced wage-and-hour lawyers, we want to keep our readers informed about the developments of the law in this area.

In a case involving Oracle (ORCL) which is located in Redwood City, California, and in a unanimous opinion, the California Supreme Court ruled that Oracle employees are entitled to the benefits of the state's overtime and other worker protections. The case was brought by former employees, but applies to current employees as well who are out-of-state residents. Companies cannot avoid the stringent rules in California by hiring out-of-state residents and failing to pay them overtime wages.

In the opinion of the court, California's labor laws with regard to overtime pay are intended to "guard against the evils of overwork." On behalf of the court, Justice Kathryn Mickle Werdegar wrote: "Not to apply California law would also encourage employers to substitute lower paid temporary employees from other states for California employees, thus threatening California's legitimate interest in expanding the job market."

Over the past decade, several former Oracle employees have battled the tech giant arguing that they should be entitled to overtime pay for training the company's customers in other states. The company had previously classified these employees as "teachers" -- in order to make them exempt from the stringent requirements that protect California workers with regard to overtime compensation.

The company said they should not have to pay these workers when the states they were providing the training in did not protect workers in this way. Several years ago, the company settled these claims, and began to pay workers acting in this capacity for overtime. But the California Supreme Court weighed in on this issue at the request of the federal court and this ruling could well have a positive impact on companies.

The ruling sends a clear message that companies should not try to avoid paying overtime wages by classifying workers erroneously. This decision is a step in the right direction for worker protections in our state.

The California wage-and-hour lawyers at Hersh & Hersh have litigated many significant cases on behalf of employees who have been harmed by their employers with regard to proper payment for overtime and other labor law violations. If you believe your employer is not paying you fairly, please contact us for a free consultation about your situation.

Last week the Ninth Circuit Court of Appeals issued a ruling in a major wage-and-hour class action which could impact many employee - litigants. The court reversed the trial court's issuance of what is called partial summary judgment in a major wage-and-hour case. As experienced wage-and-hour lawyers, we want to keep our readers informed about the latest developments in the law regarding employee rights to pay.

In a case called Campbell v. PricewaterhouseCoopers, LLP (PwC), which can be found on the court's website, two thousand unlicensed junior accountants brought a wage-and-hour class action against their employer, PricewaterhouseCoopers LLP (PwC). The unlicensed accountants contended that PwC had failed to comply with mandatory over-time pay requirements under California law and had not paid them for hours worked in this category.

The lower court issued a partial summary judgment finding that PwC could not exempt these accountants from the over-time pay requirements. Partial summary judgment and summary judgment is a procedure that enables the parties to "dispose" of issues before a case is tried and to streamline or decide the case. In this case, the partial summary judgment was in favor of the accountants.

PwC filed an appeal to the partial summary judgment and the Ninth Circuit had before it the following issue: whether or not "unlicensed accountants in California are categorically ineligible, as a matter of law, to fall under two state regulatory exemptions from mandatory over- time: the professional exemption and the administrative exemption."

The court determined that the accountants are not exempt as a matter of law. The court held that the "district court erroneously rejected triable defenses under both exemptions at summary judgment" and reversed the lower court's decision. As the case moves forward in the trial court, the issue of whether the unlicensed accountants should receive overtime pay will continue to be litigated and we will be watching this case for further developments.

Our law firm has litigated many cases on behalf of employees who have not received their proper wages because their employers claimed they were not entitled to over-time and other pay. Often employers attempt to classify employees in a way to avoid paying these, and other, wages.

If you, or someone you know, is working in a company that might be avoiding the payment of wages that are required by law, you can get help. Many employees have secured the pay they are actually owed by fighting their employers and winning. Although every case is different and the issues in every case vary, we have litigated wage-and-hour cases and have helped many employees overcome these obstacles in receiving their rightful pay.

If you are working long hours and you believe you may be entitled to overtime pay, please contact the San Francisco wage-and-hour law firm of Hersh & Hersh for a free evaluation of your situation. We have experience helping workers get the pay to which they are entitled and we can evaluate your rights at no charge to you.

Take Heart, Take a Break
Recently, CNN Health reported that overtime hours can be hazardous to your health. A new study found that those who work in excess of 10 hours a day are more susceptible to heart problems, including heart attack and heart disease. At seven hours the danger of these diseases lessens. All the more reason to make sure that if you are working overtime you are paid for it and that you pay attention to your health.

The California Injury Attorney Blog has posted previously on the ways that employers attempt to avoid paying workers appropriate compensation by classifying them as exempt. The financial impact on workers who are misclassified by their employers is real and damaging. That is why it is so important to know your rights to overtime pay.

And now there is a new potential harm to those clocking long hours on the job with or without appropriate pay -- heart problems.

Balancing Act
The suspected cause of the heart problems for those working long hours is the lack of time to relax and alleviate stress. Long hours can be heartfelt, but not in a good way. Even if you don't feel particularly stressed, your heart can be suffering on the job

The lead author of the study, Dr. Marianna Virtanen at the Finnish Institute of Occupational Health and University College London says the link between heart health and work hours has to do with balance. It's a risk factor that is overlooked if "you do not have enough time to take care of your health," says Dr. Virtanen.

The study included the health impact to over 6,000 civil servants in Britain who were followed for over a decade. Although the workers in the study were white-collar workers, the findings might well be applicable to those working in other jobs that require long hours and limited time for personal health.

If you are working long hours and you believe you may be entitled to overtime pay, please contact the San Francisco law firm of Hersh & Hersh for a free evaluation of your situation. We have experience helping workers get the pay to which they are entitled and we can evaluate your rights at no charge to you.

Don't let long hours go unpaid. And take time to take care of yourself and your heart health.

Related Web Resources

For more information on your right to over time pay, visit the California Department of Industrial Relations.

In these tough economic times, families are working harder than ever to put food on the table and receive the pay they have rightfully earned. One of the ways you and your family can protect yourselves is to know your rights with regard to wage and hour laws and overtime pay provisions.

The California Injury Attorney Blog will be posting from time to time on workers' rights and wage and hour claims, so that readers begin to educate themselves on their rights.

There are many nuances to the laws that protect workers and it is important to consult with experts who can help you understand your rights.

California has many protections in place to make sure that workers receive their overtime pay. Employers are not allowed to classify employees as managing themselves or in a sales job, just to avoid paying overtime.

Many employers try to avoid paying overtime pay, giving meal and rest breaks by misclassifying employees. That is, they call them "management" or "sales," for example, when they are actually doing some form of labor or selling is only a small fraction of how they spend their time on the job. This is misclassification and it is illegal and you could be entitled to back pay of OT, penalties and other compensation.

Generally, overtime pay applies to a nonexempt employee who is 18 years old or older or a minor employee who is 16 or 17 years old and is legally allowed to work. Nonexempt employees may work eight hours per day or 40 hours per week. But once more hours are involved, the employer must pay additional wages such as overtime pay.

Although it is difficult to generalize, if you are a person employed in a job that is not a professional licensed job like a lawyer, a doctor or is not a technical job like a highly skilled computer programmer, you might well be a nonexempt employee.

Assuming you are a nonexempt employee, you are likely entitled to earn overtime pay from your employer. What this means is that once you have worked the permissible number of hours allowed by law in a day or in a week, your employer may be required to pay you as follows:

"One and one-half times the employee's regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek; and

Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek."

Again, this applies if you are not exempt from overtime and are not in a classification of employee that is not entitled to earn overtime. There are also some exceptions to the general overtime pay rules and for certain classifications of employees overtime pay is calculated differently.

Related Web Resources

For more reading on overtime pay rights, please click here.

Continue reading "Know Your Overtime Pay Rights" »