On July 6, 2010, a three judge panel of the Second Circuit overturned a district court’s finding that pharmaceutical sales representatives fall into the outside sales and administrative employee exemptions to the overtime provisions of the Fair Labor Standards Act.  The opinion narrows the definition of a “sale” and refines what it means to exercise discretion and independent judgment.

According to the Second Circuit, “where the employee promotes a pharmaceutical product to a physician but can transfer to the physician nothing more than free samples and cannot lawfully transfer ownership of any quantity of the drug in exchange for anything of value, cannot lawfully take an order for its purchase, and cannot lawfully even obtain from the physician a binding commitment to prescribe it, we conclude that it is not plainly erroneous to conclude that the employee has not in any sense, within the meaning of the statute or regulations, made a sale.”  In comparison, the district court opined that while the plaintiffs may not “sell” in a technical sense, holding them exempt is within “the Act’s spirit, purpose, and goals.” 

Regarding the administrative exemption, the court noted the absence of any “evidence . . . that the Reps have any authority to formulate, affect, interpret, or implement Novartis’s management policies or its operating practices, or that they are involved in planning Novartis’s long-term or short-term business objectives, or that they carry out major assignments in conducting the operations of Novartis’s business, or that they have any authority to commit Novartis in matters that have significant financial impact.”  The court also discounted the importance of contracts made between the plaintiffs and hotels and convention centers, observing that all contracts are subject to predetermined budgets. 

The court relied heavily upon an amicus curiae brief filed by the Department of Labor in support of the approximately 2,500 plaintiffs in the case.  We blogged about the DOL’s brief here.  The case is In re Novartis Wage and Hour Litigation, and a copy of the court’s opinion is available here.

The employment attorneys at The Employment Law Group® law group have extensive experience recouping unpaid wages and fighting for employees who are misclassified as exempt from overtime.  To learn more about the firm’s Unpaid Wages and Overtime Practice, click here.

Judge Lynn Adelman of the U.S. District Court for the Eastern District of Wisconsin has granted conditional class certification in a suit against Cargill Meats alleging that the company violated the Fair Labor Standards Act.  The suit seeks payment for time spent donning and doffing protective gear by production line employees paid using modified “gang time.”

Last month, Tyson Foods settled a donning and doffing suit for $500,000.  Information on the Tyson Foods settlement is available here.

The employment attorneys at The Employment Law Group® law firm have extensive experience recouping unpaid wages and fighting for employees who are misclassified as exempt from overtime.  To learn more about the firm’s Unpaid Wages and Overtime Practice, click here.

On June 1, 2010, the Department of Labor announced that the Maricopa County Board of Supervisors and Sheriff’s Office in Phoenix, AZ agreed to pay $2,059,807 to 1,690 detention officers and sergeants for unpaid pre-shift meetings.  The meetings were daily and the amount awarded covers time worked from November 1, 2007 to March 4, 2009. 

The employment attorneys at The Employment Law Group® law firm have extensive experience recouping unpaid wages and fighting for employees who are misclassified as exempt from overtime.  To learn more about the firm’s Unpaid Wages and Overtime Practice, click here.

On June 16, 2010, the Department of Labor issued its second Administrator’s Interpretation of 2010, defining “clothes” under section 3(o) of the FLSA, 29 U.S.C § 203(o).   Under this new Interpretation, “clothes” refers to apparel and not protective safety equipment generally worn over one’s clothes.  Employees required by law to don and off protective gear must be paid for the time spent doing so.  A copy of the Administrator’s Interpretation is available here.

The employment attorneys at The Employment Law Group® have extensive experience prosecuting claims for unpaid wages including individual claims and class actions.  To learn more about TELG’s Non Payment of Wages Practice, click here.

On June 3, 2010, the Department of Labor announced that Tyson Foods has agreed to pay employees for donning and doffing protective wear as well as time spent washing and sanitizing themselves and their gear.  Tyson Foods also agreed to compensate employees for the time spent walking and waiting that occurs throughout the workday.  In addition, Tyson Foods will pay $500,000 in overtime back wages to 3,000 employees at its Blountsville, Alabama plant. 

For more information about the Fair Labor Standards Act and The Employment Law Group® law firm’s Unpaid Overtime Practice, click here.

On March 26, 2010, Law360 reported on U.S. District Court for the District of Maryland Judge Deborah Chasanow’s denial of the defendant’s motion to dismiss in Randolph v. ADT Sec. Servs., Inc., which we discussed here.  The opinion answers a question of first impression in the Fourth Circuit, holding that the Fair Labor Standard Act’s anti-retaliation provision protects disclosures to state labor agencies made in good faith. 

In the article, Mr. Woodfield points out that “under FLSA if you have a good faith belief in your claim, you are protected.”  When reporting violations to a state agency, “you don’t have to be correct, but you have to have a reasonable belief.”  Mr. Woodfield, the plaintiffs’ attorney, is a Principal at The Employment Law Group® law firm.  For more information about Mr. Woodfield and the firm’s Unpaid Overtime Practice, click here.

On March 24, 2010, U.S. District Court for the District of Maryland Judge Deborah Chasanow denied the defendant’s motion to dismiss in Randolph v. ADT Sec. Servs., Inc..  This case presented an important question of first impression for the Fourth Circuit, namely whether employees, who were compensated with commissions based on sales, could complain to a state wage and hour board and be protected under the anti-retaliation provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3) even if they were not entitled to overtime if they held a reasonable, good faith belief that they had been misclassified as commissions based employees and that they had been inadequately compensated for overtime work performed for the defendant. 

Plaintiffs Sharon Randolph and Tami Thompson filed a complaint with the Maryland Department of Labor, Licensing and Regulation (DLLR), claiming that ADT failed to pay them overtime.  Randolph and Thompson were paid in commission for sales, however they thought they should have been compensated on an hourly basis and that they were entitled to overtime.  After being notified of the complaint, ADT terminated Randolph and Thompson for violating company policy by disclosing confidential information to the DLLR.  After their termination, the plaintiffs filed the present suit asserting that ADT violated the FLSA’s prohibition against retaliation and that their termination was wrongful under the Maryland public policy exception to at-will employment, known as an Adler tort claim. 

Relying in part on the only U.S. court of appeals case to address the application of § 215(a)(3) to state law, Sapperstein v. Hager, 188 F.3d 852 (7th Cir. 1999), Judge Chasanow sided with the plaintiffs and will allow the case to go to trial.  A copy of the Memorandum Opinion and Order is available here.

For more information about The Employment Law Group® law firm and its Employment Law Practice, click here.

On March 3, 2010, Judge Harold Baer, Jr. of the United States District Court for the Southern District of New York granted class action status to a suit brought against a construction company for violations of the Fair Labor Standards Act.  The suit, filed by current and former employees of Raines & Welsh & Sons, Inc., claims the company did not pay its employees for all hours worked and failed to pay them one and a half times their regular rate for overtime.  The plaintiffs also allege that the company failed to pay prevailing wages to employees working on government contracts, as required by state and federal law.  The action applies to individuals who worked for the company as far back as July 8, 2006, and covers at least 60 employees.  The case is Ferrer et al. v. Raines & Welch & Sons Inc., et al., and a copy of the certifying order is available here.

For more information on The Employment Law Group® law firm’s Non-Payment of Wages Practice, click here.

Staples has agreed to a $42 million settlement to resolve 12 wage-and-hour class action lawsuits related to its misclassification of assistant store managers.  The settlement comes after several years of litigation, and the claims of unpaid overtime go back to 2002.  The settlement includes an agreement that Staples will not appeal a February 2009 jury decision awarding $4.9 million to 343 Sales Mangers.  It also resolves a pending case in Massachusetts state court, as well as 10 other cases previously centralized in the District of New Jersey under by the United States Judicial Panel on Multidistrict Litigation.  The settlement is subject to court approval.

For information on The Employment Law Group® law firm’s Non-Payment of Wages Practice, click here.

Late last week a class action suit brought by UPS delivery drivers against their employer was settled for $12.8 million.  The suit alleges that the drivers were misclassified as independent contractors and wrongfully denied benefits and overtime as a result.  At least 83% of the $12.8 million is to go to the approximately 660 employees.  The plaintiffs are expected to request about $2.02 million in costs and fees.  A copy of the complaint is available here.

For information on The Employment Law Group® law firm’s Unpaid Overtime Practice, click here.