LABOR COMMISSIONER, THE STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS DIVISION OF LABOR STANDARDS ENFORCEMENT CITY OFFICE City, State ) Case No. ____________ First Name Last Name ) Plaintiff, ) Assigned to ********* ) Hearing Officer vs. ************* , Inc ) ) HEARING BRIEF OF PLAINTIFF Defendant, ) Date: Monday, April 18, 2005 ____________________________ ) TIME: 1:00 PM ) DEPT: ****** Hearing Officer
I. INTRODUCTION
1. Plaintiff, a fully trained statistician and researcher, was engaged by Defendant during the period covered by this complaint, first as a Telecommunications Data Analyst, and subsequently as a Senior Telecommunications Analyst for the periods October 16, 2000 to November 13, 2001, and November 15, 20001, to April 15, 2003, respectively. At that latter date, Plaintiff was laid off as a part of Defendant‟s Mass Layoff Program. 2. At all times from the point of original engagement to the date of termination, it was Plaintiff‟s expectation that his work would consist, in those categories which met the standards making him exempt under the administrative exemption. Plaintiff was (1) to be paid on a salary basis; (2) paid more than the minimum required salary to qualify for this exemption; (3) was engaged and assured that his work would involve office or non-manual work directly related to management policies or general business operation; (4) would customarily and regularly require him to exercise independent discretion and judgment; (5) would be performed only under general supervision with work being done along specialized or technical lines requiring special training, experience, or knowledge; and (6) more than 50% of his time would be spent performing such exempt tasks or tasks closely related to such exempt tasks. 3. During the periods above described, Plaintiff had four different managers, each of whom assigned tasks meeting these above described conditions to a
greater or lesser degree, meeting at all times conditions (1) and (2). Yet at no time in the entire period of his employment while employed in exempt positions with the Telecommunications department, were conditions (3), (4) and (5) engaged in at levels of work even approximating the 50% requirement of condition (6). 4. Defendant argues that the nature of the work assignment engaged in by Plaintiff was unlikely to make overtime time demands upon the Plaintiff such as to render his claims credible and provable. Defendant may well argue that the claims represented in the total summation of these hours is unsupported by Defendant company records, and may thus represent faulty or incorrect computation by Plaintiff. Three elements of time usage can clearly be identified as being outside the capability of the Defendant to record or measure: a. Personal Professional Development: Since the early 1980‟s methods for statistical analysis have undergone as much change and growth as has been evident in other industries. Both trained and employed as a statistician, Plaintiff believed it incumbent upon himself to continuously upgrade his knowledge of this profession. Activities as diverse as the reading of professional journals, attending weekend seminars offered by professional statistical associations, conversing with professional colleagues via personal email all comprised the efforts engaged in during the time that Plaintiff viewed himself as an exempt employee, with responsibility to make this growth in knowledge applicable to Defendant needs. The working day seldom provided such opportunities, although the company did endorse engaging in such professional growth activity, as evidenced by the fact that it paid for enrollment in a class in the display of statistical materials for both Plaintiff and ********* . b. Engaging in Applications Research Directed at Improving Accuracy of Forecasting Methodology Necessary to Company Achievement of Its Objectives: The company relied on many forecasts by which it could govern its operations. Such questions as, how many calls would come to the Technical Support, or Customer Support operations in a
given month, day or hour; given an average length of call by a Technical Support Agent, what would be the number of agents required to handle such calls during a given period? There were many departments and individuals charged with providing Management with the answers to just such questions. Yet, because the data did not lend itself to analysis by classical statistical methods (even assuming they were properly employed, which they were not), Plaintiff for the entire period of his employment as an analyst set about to develop a universal, easy to apply tool which would lead to just such accuracy of forecasts. Since there was seldom time to devote to extensive periods of such activity during the regular working day, this work was conducted by the Plaintiff at home in the evenings, on weekends, and at times during holiday release from regular work obligations. The partially completed paper, Explorations in the use of Fast Fournier Transforms as a Substitution for Polynomial Regression Forecasting, (Plaintiff‟s Exhibit 6.) Since there was no one, with whom Plaintiff was acquainted who could understand or discuss the contents (with the exception of ********* ), it was Plaintiff‟s plan to present this methodology as a demonstration to appropriate Management, only when it had been fully proved and tested as to its utility, ease of use, and accuracy. c. Conducting Overflow work catch-up: For varying reasons ranging from time taken for face to face meetings, to the processing of a high volume of non-exempt routine data extraction, consolidation and presentation activities, Plaintiff frequently worked in excess of eight hour days, or 40 hour weeks. Much of this work was either done in Plaintiff‟s home, in the evenings, or on weekends at the Defendant‟s work-site, with total overtime added to the others accrued in a worksheet submitted for this hearing. (Plaintiff‟s Exhibit 1) 5. Defendant argues that no waiting time penalty is owed, since “Defendant did not Willfully fail to pay Plaintiff overtime wages, but had a good faith defense that no overtime was owed.” Plaintiff will demonstrate that the company, via written transmittal through the Defendant‟s established management chain, Defendant was notified in writing that a dispute with respect to overtime wages existed and was properly noticed via personal service to the company on July 8, 2002. During the entire time from the filing of that notice to the exit interview held with the then Director of Human Resources, Defendant failed to make any response addressing Plaintiff‟s
claims that any or all of the overtime wages claimed by Plaintiff did or did not have merit. [Return]
II.
ASSESSING THE FACTUAL PRESENTATION
6. In reviewing the evidence presented by both parties, the Commissioner has a formidable task in determining the accuracy of conflicting assertions to a level of certainty that can make an equitable decision possible. Plaintiff respectfully submits several criteria which may serve to make this process have a higher chance for objective evaluation of the issues at hand.
A Assessing the Standards for the Determination of the Performance of Exempt Duties (Elements 1-5)
7. Plaintiff acknowledges that at all times he was classified by Defendant as an exempt employee, he was paid the same amount (a salary) on a periodic basis, determined by the Defendant. 8. Plaintiff acknowledges that at all times he was classified by Defendant as an exempt employee, his wages being more than twice the minimum wage. 9. Plaintiff acknowledges that at all times he was classified by Defendant as an exempt employee, he was engaged in and assured that his work would involve office or non-manual work directly related to management policies or general business operation 10. Plaintiff acknowledges that during the period covered by his claim that he, at times engaged in some tasks that fully qualify under the criteria for the Administrative Exemption. Neither Plaintiff nor Defendant can submit each and every work product delivered to a Defendant employee. Even if these
documents were to be made available, Defendant lacks the information necessary to accurately determine the duration required to complete each such document, and the proportion of time that such document completion occupied out of the total duration of work claimed by the Plaintiff. 11. In order to be classified as an administratively exempt worker, “Plaintiff would customarily and regularly be required to exercise independent discretion and judgment.” 12. Plaintiff regularly was assigned each task, it‟s deadline, and the form in which it was to be presented by persons delegated by his manager. In the event Plaintiff found the assignment to be inappropriate, providing noting of usefulness to the requestor, or not completable by the deadline, his only recourse was to convince the person making the assignment of the need for change. If that individual persisted in her requirements, Plaintiff was required to go forward as originally directed. As evidence that this process was indeed formally mandated, please review “Data Analyst Work Process,” (Plaintiff‟s Exhibit 7). 13. In Defendant‟s Brief, ( p. 1, L 15) Defendant specified that “In order to be classified as an administratively exempt worker, [work] would be performed only under general supervision with work being done along specialized or technical lines requiring special training, experience, or knowledge.” 14. If Plaintiff‟s claims set forth in 12 above, are found to be accurate, it then follows that Plaintiff could have performed no exempt work following the issuance of that order, until at least such time as that policy may have been
rescinded by his new manager, commencing on or About August 1, 2002. It is evident that during that period, rather than working under general supervision, Plaintiff was subject to the direct task-to-task supervision. Beyond this there is the question of the nature and kind of reports delivered to the requesting customer.
B Assessing the Standards for the Determination of work being done along specialized or technical lines requiring special training, experience, or knowledge.” (Element 6)
15. It is evident from A7 above, that, since Plaintiff‟s report-producing activity was controlled by other than himself, from March 20, 2002 until on or about August 1, 2002, he had no opportunity to engage in tasks, “…with work being done along specialized or technical lines requiring special training, experience, or knowledge.” Yet, there remain the period from August 1, 2002 until layoff occurred on April 3, 2003, for which a determination must be made as to the character of the work carried out by the Plaintiff. 16. Absent the availability of an outside objective witness with statistical expertise, and absent a complete universe of work-product produced by Plaintiff during this period, which could be evaluated by such expert witness as to the expertise needed to produce and the time required of one having the requisite skills to do so, we are left with the development of an analytic framework by which the Commissioner can assess this critical element determining exempt or non-exempt status.
17. Conceptual Density: There are three obvious and readily discernable levels of the depth and quality of information derivable from any statistically oriented report. a. Raw Data: This represents simply one or more columns (lists, technically referred to as “Variables”) of numbers or words (Such as the names of employees). In general, the more values comprise a variable, or the greater the number of variables, the less utility this raw data has for the requestor or viewer of the data. Time to assemble such listings of variables is completely indeterminate, since it depends on so many factors that mere inspection of the number of data cells can provide no estimate of the time which was required to prepare it. b. Processed Data: Some, if not all variables are assumed to be associated with one another in some way, or an individual variable may have attributes which provide information about its distribution, magnitude, range, etc. Such data undergoes processing by various statistical methods, which are designed to answer some question(s) posed by the requestor for this processing. Answers to such categories of questions are frequently stated as (1) What will be the value of a given variable at some specified future period (forecast)? (2) How did/will a change in some policy or procedure effect the attributes of one of more of the variables under consideration (correlation)? The presentation of such processing efforts is displayed in the form of tables, charts, graphs or other specialized formats tailored to that specific methodology. With the capabilities and robustness of current statistical programs, the time required to produce these results is measured in seconds to, at the most, a few minutes. More extensive time must be expected to be spent by the statistician, in assessing the variable(s) to be extracted, and the methods best employed to answer the requestor‟s question. What is most important to consider in assessing the degree to which Plaintiff engaged in these tasks is the number of requests made requesting the answer to some specific question(s). c. Interpreted Data: When the requestor of a statistical report is trained and sophisticated with respect to the results presented, very little interpretation need be provided; yet, of the few requests that were submitted for Processed Data, almost none of the requestors could simply look at the results and proceed from there. Instead, the Plaintiff found it necessary to engage in verbal “handholding,” to guide the requestor to the answer(s) he was seeking. This took perhaps the most time of all to clarify and make useful the report being reviewed.
d. Time on Task: There are some metrics which the Commissioner may find useful in assessing the time necessary to prepare such documentation of results. P2 of this Brief contains 485 words. Assume a maximum of 10 pages of pure textual explanation in a complex report, which would then be approximately 5,000 words of content. Using common dictation software, which the Plaintiff has available to him (DragonWare, Naturally Speaking, v8.0), which processes at a maximum of 180 WPM processing capability, straight dictation would then take some 28 minutes. Assume a tripling of that time, allowing for the Plaintiff‟s “thinking and planning” of what was going to be said. Of the kinds of processing utilized by the Plaintiff to produce the charts, graphs, and tables described above, and given a maximum of 10 such displays, with 5 minutes of preparation required for each, one gets a total a maximum of 2.5 hours for the preparation of a complex Interpreted Report. (Witness will testify that he prepared the bulk of raw data at Plaintiff‟s instructions, so no time is assumed for Plaintiff‟s assumption of this element of preparation.)
C.
Multiple counsel have found merit in Plaintiff’s
Claims
18. That the Plaintiff was aware of its potential for recovery of overtime wages is documented in Plaintiff‟s Exhibit 2, dated July 8, 2002, and transmitted via personal service, to ******** Services Division, , Vice President, Real Estate and Facilities
********* , Inc.
19. In a personal meeting with *********** , during which time Exhibit 2 was received by him, Plaintiff was assured that the addressee would be given a copy. Whether this was in fact done, is unknown. Yet, while Plaintiff was promised a response by the department, made frequent inquiries as to when he would receive such a response, none was ever forthcoming by any person. 20. Since conditions of work remained unchanged (although Plaintiff was transferred to a different manager), and Plaintiff continued to accrue
overtime hours carrying out non-exempt work, he saw no reason to take any legal action beyond the notification which had been made. 21. On April 3, 2002, Plaintiff was noticed in writing of his termination, as a consequence of the company‟s Mass Layoff Plan. Plaintiff was afforded the opportunity for an individual exit interview, at which time he was notified that he was entitled to certain severance payments, contingent upon his signature of an *********** , Inc. Waiver and Release Agreement (Plaintiff‟s Exhibit 3). In that interview, Plaintiff asked about the outstanding issues relative to the overtime issue. He was told that this was something to be discussed with his counsel, in assessing the decision as to whether it was to his benefit to sign the Waiver and Release Agreement. 22. In the week following the layoff, Complainant, and co-worker ********* ,
retained counsel for the purpose of ascertaining what, if any legal actions might be taken against defendant, and the attendant risks, were we to sign the Waiver and Release Agreement, and then pursue any such legal action. 23. Counsel expressed the view that (1) the Waiver and Release Agreement was unenforceable and (2) from the information provided there was sufficient basis to institute consideration of a class-action suit for overtime wage recovery. Counsel‟s advice and assessment of the situation resulted in both Complainant and ********** signing a retainer agreement with counsel.
24. From April 2003, to October 2003, counsel engaged in preparation for the filing of a Class Action suit against the defendant. On October 11, 2003, Plaintiff received a document entitled “COMPLAINT FOR DAMAGES,
INJUNCTIVE, DECLARATORY RELIEF AND RESTITUTION.” (Plaintiff‟s Exhibit 4). However, Counsel reversed its decision, citing difficulties in reaching all plaintiffs, since most, if not all were no longer employed by the Defendant.
25. Since counsel‟s practice was limited only to the prosecution of Class Actions,
he referred us to new counsel, with a practice limited to individual claims for wage and overtime recovery. Because Plaintiffs had contemplated additional claims against individual employees for certain tort violations, this new counsel advised that he could not take these cases until “Right to Sue” releases were obtained from the state DFEH. DFEH found that the Statute of Limitations had expired. 26. By the time these releases were obtained, it was late Spring, 2004. Plaintiff‟s remaining recourse was to turn to the DLSE to obtain relief, which was thereafter timely filed. Yet, what the Labor Commissioner is asked to consider is that multiple counsel have each reviewed the information provided, and assessed the complaint contained herein as having merit.
D.
Defendant Focus on Issues Irrelevant to the Complaint
27. Plaintiff, in the INTRODUCTION above, has set forth three and only three issues which the Commissioner is to adjudicate. (1) Did the Plaintiff engage in tasks, assigned by the defendant, which meet the test of making the Plaintiff exempt under the definition of an Administrative Exemption? (2) If the Plaintiff was non-exempt under theses definitions, is the overtime presented an accurate representation of overtime hours earned? (3) Is the Plaintiff
entitled to a waiting-time penalty, as a result of Defendant‟s failure to enter into good-faith negotiations to resolve issues (1) and (2) after receiving written notice that such issues existed. 28. Yet Defendant persists in introducing statements which are demeaning and insulting to the Plaintiff, and which serve no probative value in assisting the Commissioner with his task in assessing these substantive issues. “Plaintiff devoted his time primarily to exempt staff functions although his conduct made him ineffective in performing such duties.” The effectiveness of the Plaintiff in the performance of his duties has no bearing on any of the issues under consideration. Plaintiff makes no claim for wrongful termination, nor any other tort which may have been committed by Defendant, this not being the proper venue for any such claim to be adjudicated (Defendant Hearing Brief, p. 7, L-1-2). “Unfortunately, that was a severe problem for Plaintiff and another analyst, . Plaintiff would frequently „talk down‟ to people which was reflected on many performance reviews. Plaintiff was also counseled for calling certain employees [unidentified by person] names such as „trolls,‟ „incompetent‟ and „ignorant.‟ (Id, p. 7, L-14-17) 29. Grievance material written jointly by Plaintiff and , are several times
referred to as “rambling” and as a “Manifesto” (Presentation of Grievance, Plaintiff‟s Exhibit 5). 30. The accuracy of such alleged statements does not even bear a response. All were garnered by Plaintiff‟s manager, who was physically sited in ,
California. Her assessments, at best, represent second and third hand reports of eavesdropped telephone conversations. 31. Plaintiff has no problem in admitting to the general sense of the image portrayed of him. Plaintiff was known for his readiness to voice his negative assessments of intellectual deficiencies and performance of people, as well as the counter-productivity of policies and procedures engaged in by the Defendant company, or departments thereof. He became legendary at the , California site where he worked, when he publicly labeled an earlier supervisor as a “Thought Nazi” following being threatened with disciplinary action for making critical statements about a company product to co-workers and managers. 32. Yet, none of his commentary impacted upon the assessment of the performance of his assigned duties, or upon his promotional movement through the company, until a single manager (the one to whom the “rambling manifesto” was directed) found this behavior offensive, or even worth mentioning in previous or subsequent performance reviews. 33. Had the Defendant found such behavior rising to the level of disruptiveness to its operations, in violation of it‟s policies, or in violation of law, it had many options available to it for ending this pattern. These ranged from written warnings, negative performance evaluations, demotion, suspension, up to and including termination. In fact, what it chose to do, was to reassign the Plaintiff and to him. to another manager, who found such behavior of less importance
34. Given that Defendant has made no linkage between Plaintiff‟s verbal conduct, and the assessment of whether he did indeed perform tasks which would serve to classify him as an Exempt Administrative Worker, Plaintiff perceives only three possibilities for the introduction of such material to this hearing: a. As an attempt to influence the perception of the Plaintiff as being undeserving of an award for overtime work. b. little evidence to counter the Plaintiff‟s claims, as an attempt to place distracting “Straw Men” material to substitute for the lack of probative material. c. As an attempt to delay and extend the hearing time, such that not all relevant material can be introduced
E. Potential for Personal Animosity of Defendant Witness Towards the Plaintiff, influencing Testimony
35. Three years have elapsed since Plaintiff and Defendant had any interaction. Recall of events has become diminished and distorted with the passage of time. Useful documentation has been lost, or destroyed. Yet, as the evidence will show, Defendant witness ‟s recall of critical events can be
further distorted by potential animosity she may well have felt, and continue to feel today. 36. Along with many contentious meetings held with , during the
period January 2002, until August 2002, Plaintiff specifically alleged her incompetence to Management in separate grievance documents, which could well have engendered in her feelings of dislike and anger toward the Plaintiff: 37. In Plaintiff‟s Exhibit 2, directed to the Executive Vice President of the People Support Division, ‟s top level report, the following statement is
made: “Under ordinary circumstances we would first bring this matter to
the attention of an HR representative, and if dissatisfied with the results, escalate the issue to , Manager of HR in Pasadena. However,
both of our experiences with her have been exceedingly negative, and we find her to be the center of issuance of the very policies, with which we are in dispute.” ( p. 1, L 13-17) Whether any action resulted from this comment, it would naturally engender antagonism had it been distributed. 38. Later, in this same exhibit, the following appears: “Moreover, as an element of a written warning addressed to Sherwin A. Steffin, January 31, 2002, the recipient was alleged to have been taking ‘excessive time for lunch and breaks...‟” Offered as the sole proof for that allegation, was the fact that on a given day, Plaintiff had made 22 key card swipes, some number greater than the Manager of Human Resources, , deemed to be in compliance
with allowable time away from an employee‟s work station. Even if the reported number of key swipes is accurate, and even if the inference that the number in excess of some optimum was determined to be linked to the taking of multiple breaks, Plaintiff believes that he was acting within the privileges accorded to him, as an Exempt employee. (Id. P. 3, L34-43). When Manager was queried in regard to this element of the written warning, she asserted that the source for this element was advice provided by .
39. “One would expect that for such questions, Managers will rely on the advice and guidance of Human Resource Specialists. Yet, if our claims here are found valid, that process has been severely compromised to the point of failure.” (Id. p. 6, L9-11)
40. Taken together, if all were found to be correct upon investigation, could well be less positively perceived by her management, than had no such comments been delivered to them. 41. Yet, there is more appearing in the Plaintiff‟s Exhibit 5. “By oral and written direction, that all employees under her supervision shall adhere to a schedule of 1 15 minute break each morning, a one hour lunch, and a fifteen minute break in the afternoon, has violated both the spirit and the intent
of the Federal Fair Labor Standards Act (FLSA), The California Industrial Standards and Wages Act (IWS), and has further violated the spirit and intent of the law by assigning duties outside of his Job Description to Complainant 2, [ ] without offer of additional compensation. This unlawful treatment
of Complainants has placed the company at risk of losing the exempt status of both complainants as well as all others so effected by these verbal and written directives, such that a claim for accrued overtime may be up held.” P. 2, L613). 42. Such a claim, if found to be correct, would certainly give rise to the perception that had been negligent in her duties to the company, in that she
had failed to properly ascertain and insure the correct classification for each employee, and in having failed to do so placed the company at risk for significant liability. 43. As the Commissioner evaluates the testimony of , he is asked to
consider the degree to which this witness may be distorting, consciously or unconsciously, the accuracy of the testimony she provides.
III.
THE STATUTE OF LIMITATIONS AND OTHER TIME RELATED ISSUES
A.
Case Law May Mitigate the Three Year Statute of Limitations
44. Defendant claims, and Commissioner has preliminarily ruled that any overtime claimed prior to July 7, 2001 is null and void as a result of the three year Statute of Limitations set forth in the California Code of Civil Procedure. 45. However, in the instance of Cortez v. Purolator Air Filtration Products Co., __ Cal. 4th __, 96 Cal. Rptr. 2d 518 (June 5, 2000), the Court held, in effect, that withholding of overtime provides an employer the opportunity of engaging in Unfair Competition, through its reductions in workforce costs as opposed to its more law-obeying competitors. In this case, the Court held that the four-year statute of limitations in the Unfair Competition Act permits employees to obtain four years of back pay, despite the fact that the Code of Civil Procedure would otherwise limit such relief to three years. 46. While Plaintiff is by no means an expert in labor law, that Defendant was (1) provided written notice which it disregarded for a period of at least eight months; (2) was warned in that notice that if it was indeed in violation, such violation might well apply to substantial numbers of employees. Such failure to respond, verbally or in writing, implies other than mere error committed by Defendant, suggesting a deliberate attempt at work-force cost savings, providing Defendant with an advantage over other competitors.
B. Being Disciplined for Failing to Work Scheduled Hours Does Not Make Plaintiff Non-Exempt. (Defendant Brief P16-17)
47. If carefully considered, this argument is ludicrous indeed. Nothing in the Defendant‟s communications with those reporting to the Plaintiff suggest a scheduling of hours, but rather behavior expected only of Non-Exempt employees, to wit: a specification of times which may be allocated for breaks (which are paid) and for lunch which is unpaid. 48. There is no specification that work is to be performed between a beginning and ending time, days on which work is to be performed, or even, that work is to be performed by the employee only at some specified location, such as the building and room to which the employee was assigned. Such specifications would be legitimate labeling as a “Schedule of Work,” for an exempt employee. A look at the implications of this failure to provide a schedule rapidly makes the inappropriateness of this ambiguity regularly evident. 49. Lacking such specification, the Plaintiff would be fully compliant if he were to call in and say, “I am working at home today.” In fact two members of the department (Defendant‟s first Manager, and a departmental Project Manager) between them, engaged in such activity at least once a week. 50. Attempts to impose breaks and lunch periods on exempt employees severely constrain their ability to engage in “independent judgment and discretion.” Here are some examples: Because of the echoing acoustics in the office in which the Plaintiff and had heir assigned workspaces, as well as the unfriendly atmosphere which prevailed, Plaintiff and
each day held a one hour planning and business procedures meeting at one of the local restaurants. At other times, when shorter meetings were necessary, both availed themselves of one of the many conference rooms available for such meetings. Surely, it would not be argued that because Plaintiff and both consumed food at these meetings, that this constituted a “lunch break.” Since smoking is not allowed within the premises of commercial buildings in California, Plaintiff often arranged for meetings with other individuals who smoked, with the meeting held in company allowed smoking zones, external to the building to which the Plaintiff was assigned, or at other buildings where the others worked. Since Defendant has no way of knowing whether Plaintiff took such opportunities for smoking as a means of conducting a comfortable meeting, or as an individual break, proof of “excessive breaks,” would seem to be difficult, if not impossible, to document. 51. Defendant asserts, “Although Plaintiff‟s role in providing data analysis and forecasts was important for management making key decisions, Plaintiff often could not be reached.” (Defendant Brief, p.8, L17-18). All Plaintiff business contacts were held with employees of the company, or outside contractors or vendors, all of whom had access to communication with the Plaintiff, via the company employee phone directory. Several modes of communication were available to any member of the company community: (1) could
physically reach the Plaintiff‟s phone from his desk, so if a call was expected while Plaintiff was to be away, it could either be handled directly by , or he could refer the caller to the Plaintiff‟s cell phone number; (2) Plaintiff carried a company issued and listed cell phone, which was turned on at all times, during the working day; (3) Plaintiff had a company email address. Since it had been made known to all individuals that either Plaintiff or could respond to any issue affecting our assignments, customers almost invariably addressed email messages to both parties, making knowledge of
need to contact and the urgency of response, essentially real-time. Thus, such an assertion seems hardly credible. Even if Defendant‟s assertion that plaintiff was unreachable was provably factual, this again would be a disciplinary matter, not at issue, here.
C.
Calculating the Ratio of Exempt to Non-Exempt Work Product
52. The primary decision which Commissioner must determine is, did the ratio of exempt work product of the Plaintiff exceed, in hours work was performed, 50% of the total work product generated by the Plaintiff. Before attempting to calculate that ratio however, one must subtract work hours engaged in by both exempt and non-exempt workers, the remaining hours being the total number of hours to be used in determining that ratio. The following activities are business related and credited as hours worked, but cannot be used to calculate this ratio: (1) Meetings held at the discretion of management which are attended by any group of which the Plaintiff is a member; (2) Training assigned or undertaken by the employee to enhance the performance of his/her job; (3) one-time tasks which differ from the usual and customary activities engaged in by any employee, e.g.; a day spent in moving from one workspace to another; (4) Applications research, engaged in specifically to improve some aspect of employee or company performance, whether done at the workplace or elsewhere. The criterion would be that if copyrightable or patentable, such rights would be assigned to the company as “work for hire.”
D. Determining the Aggregate Hours Worked by the Plaintiff in the Performance of his Job-Related Duties
53. For each week the Commissioner will calculate the total of the hours used by the Plaintiff in performance of his job-related duties, subtracting that 40 from that sum to determine Total Overtime Hours performed in that week. Ideally, that number would be derived from the sum of Exempt Hours + Non Exempt Hours + Meeting Hours + Training Hours + One time Tasks + Applications Research, for each week Plaintiff is not recorded as being on vacation, or sick, or other leave categories established by the company. IV. ESTABLISHING THE PREPONDERANCE OF THE EVIDENCE
54. In a perfect informational world, Plaintiff has provided guidelines by which both total hours and the Exempt to Non Exempt Ratio and the Plaintiff‟s aggregate working hours could be calculated. Clearly, critical records are unavailable to either side. There is no way to accurately assess how many requests coming to the Plaintiff were exempt or non-exempt tasks. Defendant can produce no witnesses to the level of activity which came to the Plaintiff nor even the proportion of Exempt tasks which may have been distributed to . Nor can Defendant establish the number of hours per week that Plaintiff expended in activities applicable to the production of work product vs. the number of hours in tasks associated with activity engaged in, by both exempt and non-exempt personnel. Admittedly the same may be said to be equally true for the case presented by the Plaintiff. Thus, it appears to Plaintiff the decision must rest with the credibility and coherence of the evidence presented by both parties. The following are the factors the Commissioner
may choose to use to establish which side has produced a more compelling view of an accurate presentation of the evidence at hand.
A Determination of the Classification of Exempt vs. Non-Exempt Work Product
55. Defendant brings to the Hearing a Director of Human Resources and an attorney, skilled in citing applicable law to information provided to him. Yet neither can possibly be expected to accurately assess whether a given project required “independent Judgment or Discretion,” and also “required specialized or technical lines requiring special training, experience, or knowledge.” The closest they could have come to making these determinations was by querying the managers who supervised the Plaintiff, but these potential witnesses are long removed from employment with the Defendant. Yet, Defendant had ample time to gather such resources, question them, and if necessary secure declarations or depositions from them; after all, they had ample warning that some action might take place, after being presented with Defendant Exhibits 2 and 3. Even if they chose to make no formal response, they could easily have readied themselves for potential litigation in one form or another. Yet, they chose not to do so.
B Lacking Substantive Data, Defendant Turns to Ad Homonym Attacks on the Plaintiff
56. Besides being irrelevant to any decision rendered, the kinds of scurrilous and defamatory statements were unsubstantiated, were derived from the writings of a single manager, holding an adversarial position to that of the Plaintiff,
were derived from second and third hand sources whose identity, to this day, are unknown by the Plaintiff. 57. One assumes that if the Defendant were truly interested in bringing all relevant evidence to the Trier of Fact, it is questionable as to the reason Defendant chooses to employs techniques such as these. V. CONCLUSION
58. For the reasons set forth above, and as to be further established at the hearing, Plaintiff respectfully requests that Plaintiff‟s Claim be granted in full.
Dated May 26, 2005
, Plaintiff By:________________