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Investigations

SUN MICROSYSTEMS, INC and SEEBEYOND TECHNOLOGY CORPORATION - Technical Writers

A lawsuit has been filed in which plaintiffs allege that Technical Writers for Sun Microsystems and Seebeyond Technology throughout California have been misclassified as exempt employees and seek to recover unpaid overtime wages paid at one-and-one-half times their regular hourly rates for the period beginning September 2002 through the present. The technical writers additionally allege and seek recovery from Sun Microsystems and Seebeyond Technology for the failure to provide off-duty meal periods, failure to provide overtime and meal period compensation at the time of termination, failure to provide itemized wage statements showing actual hours worked, and failure to keep accurate time records as required by California law.

All individuals who worked as Technical Writers for Sun Microsystems or Seebeyond Technology at any time since September 2002 may have a claim for unpaid overtime wages and other amounts due under California law.

If you believe that you may have a claim or would like to get more information, please call us at 713-782-LAW1 (5291) or 1-866-559-0400, email us at mlore@overtime-flsa.com or submit your information using our convenient online intake form.

WashingtonStateSupreme Court Holds: Employees May Be Entitled To Be Paid For Time Spent Commuting In Company Vehicles.

In October 2007, in the case of Stevens v. Brinks Home Security, Inc., the Washington Supreme Court found that the time an employee spends commuting in a company vehicle must be compensated, and will be subject to Washington's Minimum Wage Act, if an employer restricts the employee's commute time and/or the use of the company vehicle when commuting. While time spent commuting between home and a jobsite is not ordinarily compensable, if an employee uses a company vehicle and that use or commute time is substantially restricted or controlled by the employer, the employee is entitled to be paid for this time - including any overtime pay triggered by these additional hours worked.

In the Brinks case, the technicians were required to remain on-call and available to travel to other jobsites while en route to and from their homes. The technicians were also prohibited from engaging in any personal activities while driving the trucks. They were unable to carry nonemployee passengers or stop for personal errands while operating the truck. They were also required to obey traffic laws, always wear their seat belts, and lock the truck doors. The Court determined that their commute time had to be compensated given the restrictions placed upon them and the fact that the technicians were essentially still on duty while commuting.

If you believe that you may have a claim or would like to get more information, please call us at 713-782-LAW1 (5291) or 1-866-559-0400, email us at mlore@overtime-flsa.com or submit your information using our convenient online intake form.

CALIFORNIA LUNCH BREAKS AND OTHER PAID BREAKS

Under California state law, many workers are entitled to take uninterrupted half-hour lunch breaks and regular paid ten minute breaks during shifts of 3 1/2 hours or more.

California employees covered by the rest period provisions of the California Industrial Welfare Commission Wage Orders must be provided with a net 10-minute paid rest period for every four hours worked or major fraction thereof. Insofar as is practicable, the rest period should be in the middle of the work period. Net 10 minutes means that the rest period begins when the employee reaches an area away from the work area that is appropriate for rest. Employers are required to provide suitable resting facilities that are available for employees during working hours in an area separate from the toilet rooms.

California law provides that employees who are not permitted to take the meal and rest periods provided for under California Industrial Welfare Commission Wage Order No. 5 must be paid one additional hour of pay for each day that the rest periods are not permitted, and one additional hour of pay for each day that the thirty minute meal periods are not taken. The firm is investigating California employers who do not provide employees with these legally required breaks.

The Supreme Court of California has ruled that there is a three (3) year statute of limitations for employees to recover for an employer's failure to provide mandatory meal breaks or rest breaks.

INDEPENDENT CONTRACTORS

Workers are frequently labeled and treated as independent contractors to avoid paying overtime, as well as minimum wage and employee benefits. The mere fact that an employer classifies an employee as an independent contractor and issues the worker a 1099 for the wages paid, does not necessarily mean that the worker is an independent contractor under state and/or federal overtime and minimum wage laws. The determination of whether a worker is an employee entitled to overtime is made based on the "economic reality" of the working relationship, not on labels, job titles, compensation arrangements, or agreements between the employer and the worker.

This type of misclassification is very common because employers fail to understand that it takes a lot more than a contract to make a worker an independent contractor. Independent contractor status does not depend upon the existence of a contract specifying that the worker is an independent contractor, but rather on the underlying nature of the work relationship. Some employers hire temporary workers and think that they are "contract labor" or "contract employees", when in reality such terms are practically meaningless under wage and hour laws. If such workers are truly employees, and they work more than 40 hours in a workweek, the employer must pay them overtime pay if they do not qualify for some sort of overtime exemption. There is no way to contract around that; no piece of paper and no amount of explanation will overcome the evidence of an employment relationship.

The IRS formerly used the "Twenty Factor" test, but has recently attempted to simplify and refine the test, consolidating the twenty factors into eleven main tests, and organizing them into three main groups: behavioral control, financial control, and the type of relationship of the parties. Only when these factors and tests are applied, can a determination be made as to the true status of a worker.

GETRONICS / GETRONICS WANG: MISCLASSIFICATION OF DESKTOP SUPPORT SPECIALISTS

Plaintiffs allege that Getronics misclassifies "desktop support specialists" as exempt from coverage of the overtime provisions of the FLSA and New York labor Law, without reference to the types of duties these workers performed.

Plaintiffs seek to have the case certified as a class action that includes all persons who work or have worked for Getronics as 'Desktop Support Specialists' since Nov. 13, 2001.

This case could include thousands of similarly situated current and former Getronics employees who have been underpaid in violation of the FLSA and New York Labor Law.

Drivers of Vehicles under 10,001 Lbs.

Congress recently changed the overtime law for drivers of vehicles with a Vehicle Gross Weight Rating of 10,001 lbs. or less. Drivers of these vehicles were generally exempt from the federal overtime law prior to August 2005 (if they carried goods across state lines, or if the goods originated out of state), but now these drivers are not exempt and are covered by the federal overtime law. This change in the law will have a very significant impact for Route Delivery Drivers (for example, Newspaper Route Drivers and sales managers who oversee drivers but also handle routes) and repairpersons (those who carry parts that originated out of state). This change in the law has not been recognized by many employers, who continue to treat drivers of these vehicles as exempt, simply because they are carrying goods which originated out of state.

Mechanical/Electrical/Structural Designers-Detailers-Draftsmen

Mechanical/Electrical/Structural Designers-Detailers-Draftsmen, employees who make fabrication drawings from information provided by engineers or other professionals, are generally not exempt from the Fair Labor Standards Act overtime requirements. While some employees doing this work are paid overtime, many are not. In some industries, such as the oil and gas industry, many employers pay employees in these positions on a salary basis and do not pay overtime, even though federal law requires overtime pay.

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Michael D. Lore, P.C. is a Martindale-Hubbell AV-rated law firm that focuses its practice on representing workers in claims and lawsuits involving unpaid overtime wages.