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California Overtime: Non-Exempt Misclassified
Los Angeles, CA: Job descriptions sometimes don't match up to reality. What is at first an exempt position in writing can oftentimes be a non-exempt job in the workplace, as is the case of Rod Wastier, who stocks product for a wholesale distributor. When he was hired, Wastier was classified as a salesperson (exempt) and paid by commission. But Wastier often worked nine and 10 hour days and his job had nothing to do with sales. According to the Calfornia labor law and his attorney, Wastier is owed a lot of [overtime].
"I work for a wholesale distributor that sells food products to grocery store chains," says Wastier. "We work on commission only and get paid per unit --a unit means a box of a product such as frozen pizza." Wastier delivers and stocks frozen food products for this company that, in turn, sells to retailers.
 "The majority of my job consists of stocking shelves--I don't really do any selling," explains Wastier, "and the rest of my time is spent driving to and from my accounts." California labor law says that, if you are considered an outside sales representative, 50 percent or more of your job must consist of selling. In Wastier's case, he may spend about two minutes per hour selling, if that. "What I do is more like product marketing, just asking for retail space in the store." Clearly, selling is not 50 percent or more of his job.
" I have been working 11 hours days and sometimes more a day and didn't realize this law," adds Wastier. "I was working all these hours and realized I should be getting paid overtime. I had no idea that a commission sales rep like myself should be paid overtime because we never had hourly wages in place."
"Rod [Wastier's] and his co-workers' job descriptions classify all of them as outside sales persons," says Kim Anglin, Wastier's lawyer. "Therefore you are deemed exempt from overtime. But Rod isn't doing sales: he is stocking, doing inventory. The grocery store sells the item and Rod is given a check by the food distribution company for the number of units sold from each store."
"Our company has key account reps that actually sell an advertising program," Wastier adds. "They are exempt employees because they pre-negotiate sales deals. I have no authority to go to any of their accounts and negotiate prices. We have specific territories and we don't go out to sell other accounts. We have a sales manager who sets up our routes, sends us schematics and tells us where to set up and in what freezers, etc."
Anglin and Wastier believe that he and other employees in the company are being taken advantage of. "I think the company is turning a blind eye to this overtime issue," says Wastier.
"At first, my co-workers were afraid of retaliation. I talked to others about joining this lawsuit but they were afraid. Then I convinced them to join after talking to Kim Anglin, my attorney. I basically sat down with them and showed them a section of the California labor law that is cut and dry: I talked to them about the Ramirez vs Yosemite Water Companycase [Ramirez v. Yosemite Water Co., 30 Cal.4th 785 (1999)] which is similar to our situation."
"This case was about route sales people who distributed water to residential and commercial clients and had been told they weren't qualified for overtime because they were exempt as outside sales reps," explains Anglin. " However, the Supreme Court of California determined that in any situation, you have to look at the actual duties of the person and not their job title to determine if they were properly qualified as an exempt sales person."
"The company knows that I am going ahead with this lawsuit, and at this point they haven't asked to negotiate or settle," says Wastier. "One reason I want to go ahead with this lawsuit is to speak up and help my fellow co-workers. I believe that everyone needs to be paid within the law and this company is not playing fair. They are taking advantage of working us overtime." To this day, the company has not changed its policies and still does not pay overtime.
Anglin also says that this company is taking unfair advantage of the marketplace because, while some companies are paying proper wages to employees, this company is denying overtime wages rightfully earned and therefore they are able to unfairly compete against other food distributors.
"Our complaint comprises failure to pay overtime, time and wait penalties, interest, and reasonable attorney fees and costs. As time goes on, they are accruing thousands of dollars in attorney fees," adds Anglin.
It would likely be in their best interest to settle sooner than later.
California Overtime Legal Help If you work in California and you feel that you are owed overtime pay, please contact a lawyer involved in a possible [California Overtime Lawsuit] to review your case at no cost or obligation.
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