Articles Posted in Wage and Hour 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.

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.

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.

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.

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.

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 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.”

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.