Tampa, Fla.-based plaintiffs' attorney Jonathan Alpert has filed a total of five "collective actions" in federal district courts against Prudential, Smith Barney, PaineWebber, Raymond James and Sutro, asserting that the firms make a regular practice of not paying overtime to their sales assistants in violation of the Fair Labor Standards Act (FLSA) of 1938. The act guarantees time-and-a-half to hourly workers who put in more than 40 hours a week.
So far, Alpert has settled one action, against Prudential, for an amount that could total as much as $4.5 million when all of the claims for unpaid overtime are calculated, according to a press release issued jointly by Prudential and Alpert last May.
"Pru stepped up to the bat and did the right thing for its employees," Alpert says. The other actions are relatively recent and are still in the early stages.
Separately, Denver attorney Kathleen Mullen has filed a similar, but double-barreled action against Dean Witter in a federal district court in Colorado. She is seeking collective action status on the same claim of unpaid overtime, but is also seeking class-action status under Title VII, the federal civil rights act, on the claim that "this practice of failing to provide overtime wages has an adverse or disparate impact on women," she says. That case, which now has three plaintiffs, also includes an individual claim for sexual harassment.
With a collective action, once the prospective members of the class are notified, they in turn must notify the court if they want to "opt in" and be included in any settlement. With a class action, it's the other way around--once the court has certified a class, all members of the class are included automatically in the settlement unless they specifically opt out.
Under the FLSA, group actions must be collective actions.
The named plaintiff in both the Prudential and the PaineWebber actions is Joan Meyers. She worked for PaineWebber in its St. Petersburg, Fla., office from September 1992 to February 1995 as a licensed sales assistant, and then moved to the Prudential office in the same city, where she was employed until October 1996. She is currently unemployed, she says.
Meyers claims that at both firms, she and her fellow sales assistants were expected to work as much as three or four hours a day of overtime and to sometimes work on Saturday as well, but "on our time sheets, we were only allowed to put down 40 hours. If we put down anything else, we were told to white it out or submit another time sheet."
In a statement, PaineWebber says it wouldn't comment on pending litigation, but that its "policy is to comply with all relevant federal and state wage and hour laws."
Similarly, Sutro and Smith Barney said they would have no comment while their cases were pending.
The lead plaintiff in the Raymond James action, Judith Walters, was a sales assistant in the firm's Tampa, Fla., office for four years, through 1996. "When I first came to Raymond James, I filled out a time sheet and the hours I worked. I was told that overtime wasn't accepted unless it had prior approval, and that was very rare," Walters says. She says that she sometimes got an extra $100 or $200 from one of her brokers, but that if she had been paid overtime for all of her additional hours, it would have been worth "more than $200 a month."
Walters recently moved to Kentucky with her husband and is currently unemployed.
Larry Silver, senior vice president of marketing and sales at Raymond James and the firm's spokesperson, says, "we have a widely disseminated and routinely enforced policy of strict adherence to the FLSA, including its overtime provisions, that's drummed into everyone in management." If the firm spots any problem, "we'll rectify it immediately," he says.
As to Walters, he says: "She has her story, and I think we're going to prove it's otherwise; that's why we're going to litigation."
The law distinguishes between willful and unwillful violations. With unwillful violations, a successful claimant would be entitled to receive their unpaid overtime going back two years. With willful violations, the time period would be three years, and prevailing claimants would be entitled to double the amount of their unpaid overtime.
With the Denver case against Dean Witter, if the plaintiffs also achieve class-action status under Title VII, other damages could be awarded, including punitive damages on grounds such as emotional distress, Mullen says.
Alpert calls sales assistants an "oppressed group of people" who work exceptionally long hours in exchange for an occasional $100 tip from a broker, or a free pizza from the branch manager. "In an industry founded on money, that swims in money, the people upon whom the foundation rests deserve better," he says.