MARYLOU worked for a company as an in-house sales and marketing representative. The company sold bags and other travel accessories. She responded to customer orders and assisted the company’s marketing personnel. She was also required to travel out of town to attend trade shows.
Due to excessive workloads, Marylou worked daily and weekly overtime, working 10 hours per day from Monday through Friday. Her travels regularly fell weekends. Because her job title was ‘Assistant Sales Manager’ she was classified as an employee ‘exempt’ from overtime and was paid on a salary basis.
The company did not pay Marylou overtime for working more than 8 hours per day or more than 40 hours per week. It also did not pay her for the extra time she spent during the weekends attending trade shows for the company.
Under California law, salespersons may either be “outside salespersons” or “inside salespersons.” Outside salespersons” are persons who “customarily and regularly work more than half of the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.” Outside salespersons are exempted from the state’s minimum wage and overtime requirements.
Inside salespersons are persons who spend more than half their working time in the workplace selling. Inside sales and other inside work are considered nonexempt work, unless it is done directly in conjunction with and incidental to the employee’s outside sales and solicitations.
In distinguishing between inside and outside sales, the most important consideration is how the employee actually spends her/his time. An employee’s job description is not determinative. For employees to be exempt, they must actually work more than half of the working time away from the employer’s place of business selling.
In the course of litigation, we established that more than half the time, Marylou worked as an inside salesperson. However, the company told her she was not entitled to overtime pay because she was “salaried” or a monthly employee.
In Marylou’s own words: “I worked for this company for 10 years and was what you call [a] ‘salaried employee.’ Never received overtime pay and I didn’t know that legally I should be paid for it. . . Atty. Sayas explained to me my rights. He was very clear on his explanation of the [employment] laws & my rights. He is very professional in his representation of my case and very patient in explaining the legal documents to me.”
Marylou chose to fight for her rights and, thus, obtained justice. When the lawsuit was resolved, Marylou was awarded back wages equivalent to 4 years (the maximum allowed by law), plus interest, and penalties. Asked how she felt about the award, Marylou said, “I feel vindicated.”
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the followaing areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.
(Advertising Supplement)
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