California Unpaid Overtime Law Firm Helps Get Fluctuating Work Week Ruled Inapplicable

SAN FRANCISCO, CA, March 07, 2013 (Press-News.org) On February 20, 2013, the Honorable Kandis A. Westmore, United States Magistrate Judge for the Northern District of California, issued an order providing that the approximately 150 Retail Sales Representatives ("RSRs") who work for defendant The Hershey Company ("Hershey") in a conditionally certified collective action who are seeking overtime pay would be compensated at an hourly rate of 1.5 (time-and-a-half) and not under the fluctuating work week methodology at .5 rate (half-time), if the RSRs are found to be misclassified in that case in the pending case of Zulewski, et al. v. The Hershey Company, Case No. 4:11-cv-05117-KAW.

On October 19, 2011, Hershey RSRs filed this second suit seeking overtime pay for violating overtime rights of its national sales force after Hershey failed to change its policy following the first suit. Previously, on February 23, 2011, the Honorable Magistrate Judge Bernard Zimmerman issued an order holding that the 120 Hershey RSR plaintiffs in the case of Campanelli, et al. v. The Hershey Company, Case No. 3:08-cv-01862-BZ, were entitled to overtime compensation. The Court held that the RSRs are not exempt under the "outside sales" or "administrative exemptions" as a matter of law. Campanelli, et al. v. The Hershey Company, 765 F.Supp.2d 1185 (N.D.Cal. 2011).

In January 2012, Hershey finally agreed to start paying some overtime going forward but refused to retroactively pay any overtime for improperly classified RSRs before that date.

Under its new overtime policy, Hershey was paying 1.5 times the hourly rate for overtime worked but in court insisted it was only legally obligated to pay its workers at a .5 hourly rate for past overtime due under the fluctuating work week methodology. Hershey claimed that paying the claimants at a 1.5 rate amounted to a "windfall" to the RSRs.

Rejecting Hershey's arguments Judge Westmore noted that "Congress enacted the Federal Fair Labor Standards Act (FLSA) in 1938 to eliminate 'labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well being.'" The case is set for trial October 7, 2013 in Oakland, California.

The plaintiffs are represented by Thomas J. Brandi and Brian J. Malloy of The Brandi Law Firm in San Francisco, California and by David Feola of Hoban & Feola LLC in Denver, Colorado.

The Brandi Law Firm was founded in 1992 with the simple philosophy of providing quality professional and personal service to our clients throughout California. We represent people who have been physically and financially injured in all types of personal injury actions, including defective drugs, auto defects, auto accidents, defective roadway design, aviation accidents, consumer fraud, and child injuries.

Website: www.brandilaw.com