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October 2014

Gordon & Rees Employment Team Wins Misclassification Claim Before the California Labor Commissioner

Gordon & Rees San Francisco and Los Angeles partner Mollie Burks, assisted by associate Jennifer Lynch, recently prevailed before the California Department of Labor Standards Enforcement (DLSE) on behalf of their client, an international solar power construction company.

The claimant, who was employed by the company as a foreman, managed large-scale solar installation projects. Following his termination for insubordination, the claimant filed an administrative charge with the DLSE alleging that the company had misclassified him as an exempt employee for more than three years. The claimant sought in excess of $70,000 in allegedly unpaid overtime and double-time wages, plus waiting time penalties, interest and liquidated damages.

During the course of the two-day hearing before the Labor Commissioner, Gordon & Rees presented evidence that the claimant was primarily engaged in exempt duties, including managing large crews of workers on solar panel installation projects, directing and apportioning their work on a daily basis, making integral decisions about project logistics, engaging in problem-solving in the field when issues arose, and conducting daily inspections to ensure the quality of the client's work product. Additionally, Burks elicited key admissions from the claimant during cross-examination that he spent the bulk of his work days performing critical quality assurance inspections and often managed as many as 75 employees, closely directing and monitoring their day-to-day work performance.

On October 13, 2014, the Labor Commissioner issued her decision, finding in favor of Gordon & Rees's client. The Labor Commissioner determined that the claimant was properly classified as exempt and was not entitled to recover any unpaid overtime or damages. Additionally, the Labor Commissioner agreed with Gordon & Rees's legal argument that any work performed by the claimant outside the state of California was not recoverable under the jurisdiction of the DLSE because California's Labor Code does not apply extraterritorially.

Jennifer M. Lynch



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