Articles Posted in Overtime Pay Claims

1330873_27868463.jpgAs California wage and hour lawyers we read with interest the United States Supreme Court’s opinion in Christopher v. SmithKlineBeecham Corp., in which the Court recently determined that pharmaceutical sales representatives, also referred to as “detailers,” come within the “outside salesman” exemption to the Fair Labor Standards Act (FLSA). This result means that these workers are not entitled to receive overtime wages.

As our readers are aware, the FLSA requires that employers compensate certain employees with overtime pay. Employees considered “outside salesmen” are not entitled to this benefit. The definition of this class of employees has been left to the Department of Labor and in this case, the Court had to determine whether the pharmaceutical detailers are in fact “outside salesmen” as defined by the DOL regulations.

In the case before the court, the workers sought additional pay when working outside the normal 40 hour work week. The case is unusual because the pharmaceutical industry is so highly regulated, the detailers may only visit physicians to seek their non-binding commitment to prescribe the drugs they make. They don’t make sales in the traditional sense of a sales activity in which an actual sale is made. The detailers not only visit doctors’ offices, they also provide other information to medical personnel through various events to make them aware of the drugs their companies have to offer them for prescriptions to their patients.

As California injury lawyers, we have helped many employees secure the wages and other benefits to which they are entitled. Regardless of the size of your employer’s business, you might be entitled to recover minimum wage, overtime, meal and rest breaks, prompt payment of wages, detailed wage statements and reimbursement.

Often employees discover that they have been misclassified in their employment as “independent contractors” or as employees “exempt” from wage and hour protections. This is practice that employers use to avoid payment of wages and benefits to which employees are entitled.

Recent successes should give employees some hope that they can recover what the law allows in their employment. For example, our law firm helped secure a $1.5 million settlement in two related cases where a company refused to pay termite inspectors overtime or provide meal and rest breaks.

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.

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.

This past June, the California Supreme Court ruled that Oracle employees who resided in Colorado and Arizona, were entitled to overtime pay under California’s wage and hour laws. The plaintiffs, who travel the country training users of Oracle’s software applications, had taken the position that they were not teachers as the company had said.

By classifying these workers as teachers, the company was not required to pay overtime to these workers. Under California law this put them in a classification of “exempt” workers. The plaintiffs sought overtime pay, claiming that they were in fact “non-exempt.”

Oracle’s position was that California law was not applicable to these employees. They said the home states of these employees should control their rights to overtime pay.

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.

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.

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.
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