OCTOBER 1, 2007, BusinessWeek
COVER STORY
By Michael Orey
Wage Wars |
Workers—from truck drivers to
stockbrokers—are winning huge overtime lawsuits
|
There's a
place in Reno, Nev., that practically mints money. It's not one of the many
casinos in town. Nor is it one of the legal brothels that operate in the area.
It is a law firm, located in a wing of a private home nestled in the foothills
of the Sierra Nevadas. From a utilitarian office, with a view of horses grazing
in a neighbor's paddock across the road, attorney Mark R. Thierman pursues a
practice that in recent years has won his clients hundreds of millions of
dollars from some of the biggest names in Corporate America—and produced tens of
millions for himself.
A Harvard Law School grad, Thierman, 56, spent the
first 20 years of his career as a management-side labor attorney and
self-described union buster. He has been pelted with eggs by construction
workers and his tires have been slashed by longshoremen. But in the mid-1990s he
brought a series of cases on behalf of workers in California and established
himself as a trailblazer in what had long been a sleepy, neglected area of the
law. Thierman sues companies for violating "wage and hour" rules, typically
claiming they have failed to pay overtime to workers who deserve it. Since the
beginning of this decade, this litigation has exploded nationwide. Because wage
and hour laws have been so widely violated, undetonated legal mines remain
buried in countless companies, according to defense and plaintiffs' lawyers
alike.
No one tracks precise figures, but lawyers on both sides estimate
that over the last few years companies have collectively paid out more than $1
billion annually to resolve these claims, which are usually brought on behalf of
large groups of employees. What's more, companies can get hit again and again
with suits on behalf of different groups of workers or for alleged violations of
different provisions of a complex tapestry of laws. Framed on the wall of
Thierman's office, for example, is a copy of a check from a case he settled for
$18 million in 2003 on behalf of Starbucks (SBUX ) store managers in
California. But the coffee chain is currently defending overtime lawsuits, filed
by other attorneys, in Florida and Texas. Wal-Mart Stores (WMT )is swamped with about 80
wage and hour suits, and in the past two years has seen juries award $172
million to workers in California and $78.5 million in Pennsylvania.
"This
is the biggest problem for companies out there in the employment area by far,"
says J. Nelson Thomas, a Rochester (N.Y.) attorney, who, like Thierman, switched
from defense to plaintiffs' work. "I can hit a company with a hundred sexual
harassment lawsuits, and it will not inflict anywhere near the damage that [a
wage and hour suit] will." Steven B. Hantler, an assistant general counsel at
Chrysler, says plaintiffs' lawyers are "trying to make all employees subject to
overtime. It's subverting the free enterprise system."
In overtime cases,
Depression-era laws aimed at factories and textile mills are being applied in a
21st century economy, raising fundamental questions about the rules of the
modern workplace. As the country has shifted from manufacturing to services, for
example, which employees deserve the protections these laws offer? Generally,
workers with jobs that require independent judgment have not been entitled to
overtime pay. But with businesses embracing efficiency and quality-control
initiatives, more and more tasks, even in offices, are becoming standardized,
tightly choreographed routines. That's just one of several factors blurring the
traditional blue-collar/white-collar divide. Then there's technology: In an
always-on, telecommuting world, when does the workday begin and end? The
ambiguity now surrounding these questions is tripping up companies and enriching
lawyers like Thierman.
About 115 million employees—86% of the
workforce—are covered by federal overtime rules, according to the U.S. Labor
Dept. The rules apply to salaried and hourly workers alike. Plenty of wage and
hour lawsuits are filed on behalf of the traditional working class, be they
truckers, construction laborers, poultry processors, or restaurant workers. But
no one has been more successful than Thierman in collecting overtime for
employees who are far from the factory floor or fast-food kitchen. His biggest
settlements over the last two years have been on behalf of stockbrokers, many of
whom earn well into the six figures. Thierman has teamed up with other lawyers
to extract settlements totaling about a half-billion dollars from brokerage
firms, including $98 million from Citigroup's (C ) Smith Barney and $87 million
from UBS Financial Services Inc. (UBS ) (As is typical in
settlements, the companies do not admit liability.) With those cases drawing to
a close, he and other attorneys already are pursuing new claims on behalf of
computer workers, pharmaceutical sales reps, and accounting firm
staff.
As Thierman sees it, these are the rank and file of a white-collar
proletariat. "In the 1940s and 1950s," he writes in an e-mail, "a large portion
of American workers who were protected by overtime laws seem to have been
forgotten as inflation drove up the absolute (not the relative) amount of
compensation, and the bulk of workers began wearing sports coats and processing
information instead of wearing coveralls and processing widgets." In a
subsequent interview he says: "I'm interested in the middle class—those are my
folks."
The core wage and hour law, the federal Fair Labor Standards Act
(FLSA), has been on the books since 1938. The New Deal statute, which mandated
that a broad swath of the workforce receive 90 minutes' pay for every hour
worked beyond 40 in a week, had two goals. One was to reward laborers who put in
long hours. But another was to expand employment by making it cheaper for
companies to hire additional workers than pay existing ones time and a half.
This penalty, Thierman argues, is ineffective today, given the enormous costs of
health care and other benefits for each employee. The result, he says, is that
businesses prefer to require long hours, and they either pay overtime or not—and
hope they don't get caught.
Of course, not everyone is entitled to
overtime. Under "white-collar exemptions" to the law, employers don't have to
pay extra to various executives and professionals. These exemptions, labor
historians say, are rooted in decades-old thinking about a workforce that bears
little resemblance to today's. A clear distinction between professional and
production classes used to be assumed. Nowadays mortgage brokers, for instance,
crank out loan applications in assembly line operations and are paid based on
how much they produce. Lenders around the country have battled, largely
unsuccessfully, to defeat overtime claims by these employees.
Then
there's the notion that white-collar jobs are cushier and pay more. "Bankers
used to work bankers' hours," notes Jerry A. Jacobs, a sociologist at the
University of Pennsylvania. But, he notes, the tendency of working-class
employees to put in longer hours than professionals flipped by the 1960s.
Consider pharmaceutical sales reps. While they make an average of $79,000 a
year, their jobs require them to work about 65 hours a week, says Charles
Joseph, a New York attorney who, along with others, has filed overtime cases
against every major drugmaker. In order to earn a middle-class income, he
observes, they essentially "have to work two jobs."
Beth Amendola would
agree with that. She is suing Bristol-Myers Squibb Co., where she worked as a
sales rep in South Florida from 1998 to 2006. Often called on to attend evening
programs and medical meetings, Amendola and her colleagues would say, "Oh,
another hour, another 25 cents—that was the standard joke." A Bristol spokesman
says the company believes it complies with the FLSA, and won't comment on
pending litigation.
While the Bush Administration updated regulations
governing white-collar exemptions in 2004, attorneys say the changes were
incremental and left plenty of room for lawsuits. There are two basic categories
of overtime claims. One arises because a company has misclassified employees as
exempt from the wage and hour laws, and thus improperly failed to pay overtime.
In some of these cases the workers have been classified as independent
contractors, meaning the company doesn't pay them benefits, either. The second
is a so-called off-the-clock claim, in which employees allege that some of the
work they do is not recorded by the company, sometimes as an intentional way to
keep them from accruing overtime.
Even defense attorneys acknowledge that
vast numbers of companies are violating the law. "Industries long steeped in
tradition as to who is exempt and who is not exempt...are not necessarily
compliant with the letter of the regulations," says Kirby C. Wilcox, a partner
at Paul, Hastings, Janofsky & Walker in San Francisco. Indeed Thomas, the
former defense attorney, says he switched sides after representing an employer
in a wage and hour case. "I was amazed at how prevalent the violations were and
the size of the settlement," says Thomas, who co-founded his own firm, Dolin,
Thomas & Solomon, in 2000. "I said to myself, Boy, I'm really on the wrong
side here.'"
The proliferation of cases—more than doubling in the federal
courts from 2001 to 2006—at first drew little notice in the business community,
but that's changing. "Everybody's talking about it," says Robin S. Conrad, head
of the litigation arm of the U.S. Chamber of Commerce, which recently began
filing briefs in cases in support of companies.
POWER OF
SUGGESTION
While violations appear widespread, employees themselves
rarely think to make wage and hour claims. Instead, they usually have it
suggested to them by lawyers. "Ninety-five percent of our wage and hour cases
are a result of someone coming to us complaining about something else," says
Thomas. "I can't tell you how many people have come into our office with
employment disputes that are meritless and would be thrown out of court and walk
out with an FLSA claim."
So deeply rooted are archaic workplace
stereotypes that many college-educated, white-collar workers are resistant to
the idea that they are entitled to overtime. They associate it with a labor pool
that is valued for brawn rather than brains. The notion of keeping track of
their hours so they can get paid for long weeks strikes them as
déclassé.
Scores of plaintiffs' firms are now aggressively pursuing
overtime cases, but it is Thierman whom defense lawyers consistently cite as the
most successful and innovative in the business. "He seeds the clouds," and
others collect the rain, says defense attorney Wilcox. Thierman has particularly
made his mark in pursuit of claims on behalf of relatively well-paid
workers.
Tall with wavy gray hair, Thierman is a bit of an iconoclast and
calls himself a libertarian. He works with just a couple of assistants. A dog
(Yoda) and a cat (Obi Wan) wander in occasionally for attention. At one point in
the late 1980s, Thierman thought about quitting the law altogether, and, as
documented by a framed certificate in his office, became a registered
hypnotherapist. He owns a vacation home in Venezuela. He and his wife, who have
three grown children, moved from San Francisco to Reno six years ago, and he
contemplated semiretirement. Then his wage and hour practice took
off.
The bulk of Thierman's cases involve claims of misclassification. In
the case he settled against Starbucks in 2003, Thierman contended that merely
giving employees the title of store manager or assistant manager doesn't make
them "executives," who are exempt from overtime. A majority of their work, he
argued, was making lattes and Frappuccinos, just like the lower-ranking, and
overtime-eligible, baristas. (A Starbucks spokeswoman says it is the company's
policy to comply with overtime laws.) This is the same approach he is now
pressing against a wide range of other companies on behalf of employees who
would widely be viewed as white-collar. His focus is on what they actually do,
not on their job titles, income, or academic degrees. "You don't have to be
stupid to get overtime," Thierman says. "In fact you're stupid if you don't get
overtime."
Computer workers of various stripes, for example, have
commonly not been paid for their extra hours. In a sop to the IT industry,
lawmakers exempted such employees, who tend to be well-educated, well-paid, and
have a culture of working virtually round the clock. The companies argued that
they would otherwise not be able to remain competitive with foreign rivals. But
under California law, the exemption applies only for workers whose primary
function involves "the exercise of discretion and independent judgment." In
numerous lawsuits, Thierman and other plaintiffs' attorneys have alleged that
legions of systems engineers, help desk staff, and customer service personnel do
no such thing. Of programmers, Thierman says, "Yes, they get to pick whatever
code they want to write, but they don't tell you what the program does.... All
they do is implement someone else's desires."
Already the settlements are
rolling in. Siebel Systems (ORCL ) has agreed to pay
$27.5 million to about 800 software engineers, and IBM (IBM ) is forking over $65
million to technical and customer support workers. Thierman says he also plans
to go after other big employers of computer personnel, including banks and
health insurers.
Stockbrokers are highly compensated and have long been
presumed to be exempt, but Thierman caught financial services firms by alleging
a technical violation of the law: To be treated as exempt, employees must
receive a salary, and brokers have generally received only commissions. Although
they deny liability, a parade of firms has settled after facing one of
Thierman's suits, including Merrill Lynch, Morgan Stanley, and A.G. Edwards.
Under a complex formula, most brokers received about $30,000 after attorneys'
fees, Thierman says. An industry trade group, the Securities Industry &
Financial Markets Assn., notes in a statement that the Labor Dept. issued an
opinion letter in November, 2006, which stated that brokers are exempt. The
letter, however, came too late to help firms that have already settled, and it
isn't binding in court.
STOPPING THE CLOCK
In some of
his lawsuits, Thierman has made off-the-clock claims on behalf of lower-wage
employees. For instance, in a suit on behalf of employees of Hollywood Video
stores, a movie rental chain, he alleged workers had to boot up the computer
before they could punch in, and had to punch out before they could close the
register for the night and do the store tally. He used store surveillance
cameras to document the time spent on these tasks, settling the case for $7.2
million.
Nearly all of the cases faced by Wal-Mart are off-the-clock
claims, with allegations that employees worked through lunch breaks without pay,
or were forced to punch out when the store closed but then continue with tasks
such as restocking shelves. Store managers are under constant pressure from
Wal-Mart headquarters to keep wages down, says attorney Michael Donovan, who won
the $72.5 million verdict against the retailer in Philadelphia last year. The
easiest way to control wages, he says, is to prevent workers from logging
overtime. "We're finding that that's a common pattern in large retail operations
where a store manager's compensation is based in part on the profitability of
their store," says Piper Hoffman, a New York attorney who has filed similar
suits. John Simley, a spokesman for Wal-Mart, says the notion that the retailer
doesn't pay people for overtime is "simply not true." Simley says that Wal-Mart
will appeal the $172 million California verdict. He also notes that the company
has persuaded courts to reject numerous class actions.
There are many
variations on the off-the-clock theme. In June, Bank of America was sued in
Florida by an employee who alleges that her branch manager deleted the amount of
overtime she logged from the bank's records in order to receive a branch
productivity bonus. A BofA spokeswoman says there is no basis for the
complaint.
The issue of when the workday begins can get complicated.
Delivery truck drivers, utility workers, and service technicians, for example,
now regularly download their route assignments or appointments from their homes
by computer each morning. Should they be paid for this time? Should this be the
start of their workday? The same questions arise for white-collar workers.
Daniel J. McCoy, an attorney at Fenwick & West in Mountain View, Calif.,
says that 15 years ago he would have presumed that a person who checked her
e-mail remotely or who telecommuted had the type of job that would not be
eligible for overtime. "That's less and less true today," he says. He gives the
example of his own assistant, who sent McCoy an e-mail on a Sunday. McCoy said
he promptly told his assistant that he didn't need to be working on a weekend,
but that if he was, he had to be sure to record his time, since he is covered by
wage and hour laws.
Management-side attorneys like McCoy are certainly
cashing in on the wage and hour lawsuit boom. But they can only look with
astonishment and envy at what plaintiffs' attorneys are now making in this area.
Thierman says his recent settlements alone total $458 million. Attorneys fees
are about 25% of that, and Thierman usually splits his take with various
co-counsel on each case. While he won't say how much he's due to receive from
these cases (and courts must still approve the fees in some of them), he doesn't
dispute that it's in the low tens of millions.
In a friend-of-the-court
brief filed in a case in August, the U.S. Chamber of Commerce decried the "FLSA
litigation explosion" and its having become the "claim du jour" for plaintiffs'
attorneys. Thierman shrugs at such concerns. The alternative, in his view, would
be to have the laws enforced by a government bureaucracy. "Somebody's got to
regulate this stuff," he says, "and I think the bounty hunter system works just
fine."
Orey is a senior writer covering legal affairs for
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