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According to a recent Seattle Times article, Wal-Mart is set to pay current and former employees in Washington State $35,000,000.00 to settle claims that they were forced to work "off the clock” and/or skip required rest periods. Per the article, Wal-Mart faced as many as 63 U.S. lawsuits all alleging violations of wage and hour laws and the Washington settlement is part of their $640,000,000.00 plan to resolve that litigation.

Recovery for the Washington litigants looks to be limited to around $950.00 at the high end so it is not a great deal of money for each individual claimant, however at larger companies like Wal-Mart it would be unlikely that a pay practice would only apply to just a few employees. For example, the article puts the total number of owed employees in Washington State alone at 88,000. In suits like this, often called collective actions, the general maxim of strength in numbers absolutely holds true.

Wage and hour laws can be violated in any number of ways. Employees who are forced to skip rest periods, employees who are not paid overtime, and employees who are forced to work “off the clock” all may have recourse against their employers under federal and state law. With regard overtime, many are under the misconception that just because they are paid a salary or because they are paid by commission that they cannot be entitled to overtime when in fact the opposite is true. Eligibility for overtime has nothing to do with job title or pay practice and relies far more heavily on job duties.

Labels: collective action Employment Lawyer Fair Labor Standards Act FLSA overtime unpaid overtime wages Wage and Hour Division

4/27/2009
Harris D. Butler
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Are Timeshare Sales Employees Entitled to Overtime Pay?

Under a Department of Labor Wage and Hour Division Opinion Letter dated January 25, 2007, on-property timeshare salespeople are entitled to overtime wages for all hours worked over 40 hours per week. The DOL Opinion Letter states that timeshare employees enaged in sales efforts on the employer's property and performing associated duties should be considered performing "inside sales" work and that such employees are entitled to overtime pay.

The timeshare industry has historically treated this work as "outside sales" (which would be exempt from overtime) and timeshare employers have not paid sales employees overtime. The issue applies to all on-property employees performing timeshare sales functions, including "front-line" sales, "in-house" sales, "take-over" sales/TO managers, "closers" and "exit department" sales, all of which may qualify for overtime payments depending on the circumstances of each case. Timeshare salespeople have often worked over 40 hours per week without overtime pay. Because the work is performed on the employer's property, the Opinion Letter states that the type of activity described in the Letter should be considered "inside sales" and that employees performing such work are entitled to overtime - they are not "exempt" employees under the Fair Labor Standards Act (FLSA), the law which governs overtime pay.

The FLSA requires that employers who have not paid on-property timeshare sales employees overtime for all hours worked over 40 per week must pay their employees and former employees (1) their unpaid overtime; (2) liquidated damages equal to an additional like amount of unpaid overtime for two years from the date of filing a suit or an "opt-in" consent to join an existing suit (i.e. doubling the amount due) and (3) attorneys fees and costs of court. In the cases of willful violations, employers are required to pay unpaid overtime and liquidated damages for three years unpaid overtime.

Butler, Williams & Skilling, P.C. and Cupp & Cupp, P.C. presently represent a collective of approximately 145 timeshare sales employees for unpaid overtime pay and minimum wages against Massanutten Resort (owned by Great Eastern Resort Corporation and affiliated with and managed by The Berkley Group, Inc. family of resorts) in a claim pending in the Virginia state court in Rockingham County (Harrisonburg, Virginia).

Labels: collective action commission sales Fair Labor Standards Act FLSA inside sales outside sales exemption overtime timeshare sales unpaid overtime wages Virginia employment lawyer Virginia overtime lawyer Wage and Hour Division

1/22/2009
Michael G. Phelan
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WellPoint Age Discrimination Collective Action (Class) Moves Forward

On January 15, 2009, Judge James R. Spencer, United States Federal Judge for the Eastern District of Virginia, overuled WellPoint's Motion to Dismiss claims alleging that WellPoint layoffs from January, 2005 though the present violate the Age Discrimination in Employment Act (ADEA). Judge Spencer's 14 page opinion considers, and rejects, WellPoint's arguments that the plaintiffs had not stated both actionable disparate treatment claims and disparate impact claims of age discrimination. The case is Merritt v. WellPoint, Inc. d/b/a Anthem Health Plans of Virginia, Inc., and/or Anthem Blue Cross and Blue Shield, Civil Action No. 3:08-cv-272.

The lawsuit seeks 'collective action' status for the three filing plaintiffs to represent a group of "persons age 40 and older who were employed in WellPoint's Virginia operations and whose discharge, forced separation, or other involuntary separation from WellPoint during the period from January 2005 through the present resulted from WellPoint's policy or practice treating age (and its related characteristics) as negative factors in determining which employees to retain and which to terminate (variously described by WellPoint as "reductions in force," "position eliminations," "resignations," "retirements," and "cause" terminations) and/or from the adverse age impact of WellPoint's use of subjective termination selection processes and/or the use of analytics/metrics in the termination selection process."

The lawsuit also asserts that the WellPoint terminations were a result of a wide-spread termination of older employees while retaining younger employees. The suit alleges that WellPoint, in an effort to avoid being sued by older workers, inasmuch forced terminated employees to sign Releases which included release of age discrimination claims. The three plaintiffs who filed the lawsuit did not sign such releases, but argued that the releases were unenforceable [under the Older Worker Benefit Protection Act (OWBPA)] as to other persons who did sign releases of age claims.

The Court's opinion recognized that age discrimination under the ADEA may be proven by either disparate treatment theory (whether age actually motivated WellPoint or played a role in the decision-making process) or by disparate impact theory (whether facially neutral employment practices fall more heavily on older employees than is justified by business necessity). Citing a recent federal court case from Maryland finding a case of properly alleged disparate age impact discrimination, the Court noted the Complaint's reliance on several WellPoint "arrangements" which had a disparate impact on older workers, including "analytical models," a "selection process which considered age, and age related characteristics, as negative factors," including medical care or leave, the use of "metrics," which disproportionately evaluated and/or impacted older workers and a consideration of "age and/or age related characteristics in the 'cost' of maintaining an older workforce."

The Court's ruling directs the Plaintiffs to amend the definition of the group of former WellPoint employees they seek to represent. Because none of the plaintiffs before the Court at that time actually signed the challenged age discrimination releases, the OWBPA claim was dismissed, but the Court indicated that the claim may be again raised should a former employee join the suit who did sign such a release. Another plaintiff has now joined the suit by filing an "opt in" form and that claim challenging the validity of age releases is again before the Court.

Our firm and attorneys from AARP Foundation Litigation have joined together to represent the plaintiffs as co-counsel in this case. The federal courts in the Eastern District of Virginia are referred to as the "Rocket Docket" due to its reputation for quickly moving matters through to trial or resolution. In late March, 2009 the Court is expected to hear arguments on the plaintiffs' motion for court facilitated notice to the collective or group of similarly situated persons terminated as part of the reductions in force.