MOBILE, Ala. — A group of exterminators have settled their wage and hour class lawsuit against Ecolab for $7.5 million dollars. The class consisted of about 1,100 exterminators nationwide, and under the terms of the settlement, the average payment for class members would be more than $5,000, along with service awards for the nine named plaintiffs of up to $3,000 each. In the suit, the plaintiffs alleged that Ecolab violated the overtime provisions of the Fair Labor Standards Act (FLSA).
Misclassified Service Specialists
According to the lawsuit, Ecolab unlawfully classified service specialists as exempt from overtime pay and then failed to pay them when they worked more than 40 hours per week or when they worked through meal periods and other breaks.
Often, exterminators or pest control specialists are paid on a commission basis and are able to set their own schedules, working fewer hours in one week and more in the next. Normally, employees require employers to pay overtime, which is one and one-half the employee’s regular rate of pay for all hours worked over 40 hours in a week. However, there exists an exemption that commissioned salespeople may fall within.
Commissioned Sales Exemption
Under FLSA, employees paid commissions by retail and service establishments may be exempt from minimum wage and overtime requirements. FLSA defines retail and service establishments as establishments of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry. To meet the exemption, the employee of a qualifying retail or service establishment must have a regular rate of pay that exceeds one and one-half times the applicable minimum wage for every hour worked in a workweek in which overtime hours are worked, and more than half that employee’s total earnings in a representative period must consist of commissions.
Stated differently, if the employee is paid entirely by commissions, or draws and commissions, or if commissions are always greater than salary or hourly amounts paid, the conditions above will have been met and the employee is exempt. If the employee is not paid this way, the employer must separately total the employee’s commissions and other compensation paid during that period, and the total commissions paid must exceed the total of other compensation paid for the exemption to apply.
Not all commissioned employees by retail and service establishments are exempt from FLSA’s overtime and minimum wage requirements. You should call (855) 754-2795 or complete the Free Unpaid Overtime Case Review form on the top right of this page if you feel your employee wage rights have been violated and have been misclassified as exempt from FLSA. Our top-rated team of wage lawyers will evaluate your situation to determine your best course of action. We will also determine if it is in your best interest to file a lawsuit against your employer. There are strict time limitations for filing, so it is important that you call our experienced attorneys today