Incisive Media, August 24, 2009 – D.C. firm goes West for wage-and-hour offensive

Posted August 24th, 2009 by in 2009 News Archive, Heisler News, News.

Amanda Bronstad
Washington’s Sanford Wittels & Heisler has filed its fourth wage-and-hour class action in California within the past three months after expanding its San Francisco office.

On Aug. 19, the firm filed a $100 million class action against United Parcel Service Inc. on behalf of at least 5,000 account managers nationwide, including 1,500 in California, who allege that they routinely have been denied overtime compensation.

Since May, the firm has filed similar wage-and-hour class actions valued at between $50 million and $200 million against Costco Wholesale Corp., The Northwestern Mutual Life Insurance Co. and Valero Energy Corp.

Steven Wittels, name partner of the firm, credited the flurry of California cases to the recent expansion of the San Francisco office, opened about two years ago by Thomas Marc Litton, of counsel to the firm. More recently, two attorneys from San Francisco’s Ram & Olson signed on — Karl Olson, a public access specialist who handles consumer and employment class actions, and Michael F. Ram, a consumer class action litigator. Sanford Wittels became big enough to move into expanded offices, Wittels said.

“We file cases everywhere, but because of our California presence and people knowing more about us in terms of being a California firm, we’re getting people contacting us,” he said.

The firm has teamed with Chapin Wheeler, a small trial boutique in San Diego, which has been serving as co-counsel in some of the recent California cases, including the one against UPS.

That suit seeks compensation for unpaid overtime and missed rest and meal breaks, among other claims. It was filed on behalf of Laura Meza, who has been an account manager at UPS in Fullerton, Calif., since 2005. Beginning this year, Meza has been on medical leave due in part to the stress of the job, the suit says, having regularly worked 60 hours each week beginning at 6 a.m. and often into evenings and on weekends.

Account managers like Meza are not allowed to sell UPS products and services and, therefore, are not subject to sales exemptions under federal and state wage-and-hour laws, said Jeremy Heisler, name partner in the New York office of Sanford Wittels. Under the U.S. Fair Labor Standards Act, workers subject to the overtime exemption must hold primary duties of selling a company’s products and services. Under California law, employees who qualify for the exemption must spend more than 50% of their time in sales, he said.

“They don’t sell anything,” Heisler said of UPS account managers. “If they are not actually consummating the sale, that exemption would not apply. To the extent UPS is relying on that exemption to deny account managers overtime, we believe it’s a misclassification,” he said.

Susan Rosenberg, a spokeswoman for UPS, which is based in Atlanta, said that the company had not yet been served with the suit.

“We view the account manager role [as being] in the UPS sales organization, and we have a defined sales compensation structure and believe these employees are classified as exempt and not subject to overtime,” she said.

RAFT OF WAGE-AND-HOUR CLAIMS

On May 15, Sanford Wittels and Chapin Wheeler filed a $50 million class action in San Diego on behalf of hourly Costco employees who allegedly were forced to work off the clock at the end of the day in violation of California wage-and-hour laws.

On June 25, Sanford Wittels, again with Chapin Wheeler, sued Northwestern Mutual in San Diego for $200 million, alleging that sales and financial representatives had not been paid overtime wages under California and federal law. On Aug. 10, the firm filed another suit for an estimated $100 million against Valero Energy in San Francisco, alleging offthe- clock and overtime violations.

All but the Costco case — which is in San Diego County, Calif., Superior Court — were filed in federal courts in California. Wittels said that’s because he did not want to go through the extra step of having defendants invoke the Class Action Fairness Act to remove the Fair Labor Standards Act claims to federal court.

As for those multimillion-dollar damages calculations?

“We try to do it as accurate as we can,” Wittels said, by calculating how many people could be in the class, the number of hours worked and the number of unpaid breaks. “It’s hard to be completely accurate because the defendants are privy to the records and we can’t get that until discovery.”

Amanda Bronstad can be contacted at amanda. bronstad@incisivemedia.com.

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