Federal law requires employers to pay overtime wages for any work hours over 40 in a week even if you are paid by salary and/or commission and even if you were told that you are not eligible to get overtime pay.  An employer can legally not pay you overtime only if you are exempted from the law.  To find out whether you are entitled to overtime pay, call us at 845-255-9370. The call is free and confidential.

Ecolab, Inc.

On September 11, 2012, Getman & Sweeney and Outten & Golden filed a federal lawsuit for overtime pay in the U.S. District Court for the Eastern District of New York to recover unpaid overtime wages for employees of Ecolab throughout the country. The case challenges Ecolab’s failure to pay time and one half premium pay for all hours worked over 40 in a work week. Plaintiffs seek unpaid overtime wages and “liquidated” or double damages. Click here to view a copy of the Complaint.

All individuals who have worked for Ecolab at any time during the prior three years in a non-supervisory capacity, who regularly performed maintenance, installation and repair services on commercial dishwashing equipment on the premises of Ecolab’s customers, including but not limited to Route Managers, Route Sales Managers, Service and Sales Route Managers are eligible to join the case and bring their claims under federal law. It does not matter if you were paid by salary and/or commission, you can join the case to recover back overtime wages. To join the case, you must fill out and return a Consent to Sue to counsel. Click here for a copy of the Consent to Sue.

The complaint also brings class action claims for individuals who worked for Ecolab in New York at any time since November 18, 2009 or in New Jersey at any time since September 11, 2010 in a non-supervisory capacity, who regularly performed maintenance, installation and repair services on commercial dishwashing equipment on the premises of Ecolab’s customers.

How to Join this Case

To bring claims under the FLSA for back wages and an equal amount of liquidated damages, you must affirmatively join the case by filing a Consent to Sue. Employees alleging violations under the state wage-and-hour law will be automatically included in the case if the Court certifies the class action. Click here for the Consent to Sue form.

Status Reports

Claims for New Jersey Route Managers Proceed — Posted December 22, 2015

The Court ruled that Route Managers who worked for Ecolab in New Jersey may have valid claims under NJ state law even though it found that plaintiffs are exempt from overtime under federal law. Judge Matsumoto ruled that litigation regarding the New Jersey class claims will go forward on the issue of whether Route Managers’ primary duty was sales or service. If you worked for Ecolab as a Route Manager in New Jersey, you may be able to bring claims in the case. Contact us for more information.

Decision on Summary Judgment – Posted October 26, 2015

Oral Arguments in support of the summary judgment briefing were held on July 10, 2015.

On September 30, 2015, the Court denied plaintiffs’ motion for summary judgment and granted Ecolab’s motion for summary judgment holding that Ecolab is a retail establishment under 29 U.S.C. § 207(i) and, therefore, plaintiffs are exempt from overtime under federal law. You can read the decision here: Dkt 237

Plaintiffs have requested that the court allow an immediate appeal on this decision and are awaiting the court’s instructions on how to proceed.

We will post new updates as information becomes available.

Summary Judgment Filed – Posted January 20, 2015

On December 22, 2014, Plaintiffs and Ecolab filed their summary judgment motions with the District Court asking the Court to decide certain issues. Ecolab claims that it does not have to pay Route Managers overtime for two reasons: (1) Route Managers are exempt outside sales people; and (2) Ecolab is a retail establishment. Plaintiffs argue that their primary job was maintenance and repair, not sales, and therefore they are not exempt outside sales people. They also argue that because Ecolab sells its products through distributors, not directly to the general public, and the machines it leases and products it sells are not retail in nature, Ecolab cannot be a retail establishment.

The Court can rule for Plaintiffs or for Defendants on these issues but it may also deny both motions and decide that the case must continue to trial for these issues to be decided by the jury.

This case currently includes claims under federal and New York and New Jersey state law. Plaintiffs have asked the Court’s permission to amend the original complaint to also include state class action claims for Illinois, North Carolina, Pennsylvania, and Washington. The Magistrate Judge in this case has recommended that the amendment adding the state claims go forward. Plaintiffs are asking the Court to extend the new state law claims back to the filing of the original complaint.

Court Rejects Ecolab’s Expert – Posted September 3, 2014

After the Parties began briefing their summary judgment motions, the Plaintiffs asked the Court to exclude the testimony of Ecolab’s expert witness, Donald Winter. Mr. Winter had tried to bolster one of Ecolab’s defenses by testifying that Ecolab is recognized as a retail establishment. On August 27, the Court excluded his testimony, finding that “Mr. Winter’s opinions are inadmissible and unhelpful as legal conclusions”. With the issue of Mr. Winter’s testimony resolved, Plaintiffs expect to file their motion asking the Court to find that the Plaintiffs were not exempt employees.

Salaried Positions, Overtime Claims, and the FLSA

The Fair Labor Standards Act (FLSA) requires that overtime premium be paid to covered workers. It doesn’t matter that an employee knew they were not going to be paid overtime when they took the job. The fact that the employer tells employees they will only receive a salary, and not overtime, does not excuse the failure to pay overtime. In fact, the law requires that workers who are “misclassified” by the employer be paid the overtime they should have received plus an equal amount in “liquidated damages,” which compensates them for not having the money when it was due them. The legal right to be paid correctly is not fixed by an employer telling employees that it plans to violate the law.

Posted on Thursday, March 6th, 2014

Court to Hear Arguments on Ecolab’s Defenses to Paying Overtime

Discovery between plaintiffs and defendants is complete on the issue of whether Ecolab did not have to pay Route Managers overtime because they were exempt outside salesmen or because Ecolab is entitled to the “retail or service establishment” exemption. The Parties have a conference with the Court on March 11 to set a schedule to submit written arguments, and the arguments should be fully submitted to the Court for its decision by early summer. If you want Getman & Sweeney to bring your claims for back overtime wages in this case but have not yet joined, you must file a consent to sue. Remember, every week you wait could mean you lose a week of claims because the statute of limitations runs weekly.

Posted on Monday, March 3rd, 2014

The Parties Agree to Fast-Track Litigation on Ecolab’s Defenses

Ecolab has raised two reasons for not paying Route Managers, Route Sales Managers, Service and Sales Route Managers (together “Route Managers”) overtime.  The Company claims that Route Managers are exempt from the overtime law because they are outside salespeople and because they meet the criteria of the “retail sales exemption.” It is Plaintiffs’ position that the primary duty of Route Managers is to fix and maintain dishwashing machines and that there are no exemptions to overtime that apply. The parties have agreed to litigate these two defenses on an accelerated schedule based on the claims of the three named plaintiffs. If the Court rules in Plaintiffs’ favor, the case will continue for everyone, not just the named plaintiffs. The parties will complete discovery on the issues by February 28, 2014, and request a pre-motion conference on March 14, 2014, to schedule briefing and argument on the defenses. You may still join the case by filing a consent to sue.

Posted on Tuesday, December 17th, 2013

Answers to Common Questions:

Which employees can be part of this lawsuit?

All individuals who have worked for Ecolab at any time during the prior three years in a non-supervisory capacity, who regularly performed maintenance, installation and repair services on commercial dishwashing equipment on the premises of Ecolab’s customers, including but not limited to Route Managers, Route Sales Managers, Service and Sales Route Managers are eligible to join the case and bring their claims under federal law. To join the case, you must fill out and return a Consent to Sue to counsel. Click here for the Consent to Sue form.

What work locations are covered by this lawsuit?

The claims in this lawsuit cover the entire United States. If you worked for Ecolab anywhere in the country, you may join this case.

What claims are covered in this case?

The lawsuit at present covers claims for overtime pay under the federal Fair Labor Standards Act (“FLSA”) and under New York and New Jersey wage-and-hour law. The specific violations claimed are that Ecolab did not pay the class members overtime wages even though the law requires it to do so.

How do I join the case?

To bring claims under the FLSA for back wages and an equal amount of liquidated damages, you must affirmatively join the case by filing a Consent to Sue. Employees alleging violations under the state wage-and-hour law will be automatically included in the case if the Court certifies the class action. Click here for the Consent to Sue form.

What damages are sought?

Damages sought under the FLSA include back overtime pay, an equal amount of liquidated damages, attorneys’ fees, and any costs of litigating the case. Damages for the New York and New Jersey wage-and-hour law claims include back overtime pay, interest, and fees and costs.

What is the difference between the FLSA and state law claims?

All the claims are based on the same facts – Ecolab did not pay the class members the overtime wages that the law requires—and many of the available damages are the same under both laws. The primary difference in the claims is that the state overtime law claims may provide for a longer period of recovery of back overtime pay and/or additional damages such as interest.

The FLSA allows claims for overtime wages going back two years (or three years if the employer acted willfully) from when someone affirmatively joins the case by filing a Consent to Sue. You must send us a signed Consent to Sue to bring FLSA claims in this action. Click here for the Consent to Sue form.
The New York wage-and-hour claims go back to November 18, 2009, and the New Jersey claims go back to September 11, 2010. Both New York and New Jersey law allow for interest on unpaid back wages while federal law provides for liquidated damages in lieu of interest.

How far back can claims be made?

Your claims under the FLSA can go back as far as February 22, 2010 (if Plaintiffs’ can show that the employer acted willfully). You must file your Consent to Sue Form to join this case. Click here for the Consent to Sue form.

Do I have to pay to join the case?

No. The attorneys are handling this case on a contingent basis and will only be paid when we win through a settlement or final judgment. Under both the federal and state wage-and-hour law, when plaintiffs win an overtime case, defendants must pay the plaintiffs’ costs and attorneys’ fees.

Can I wait to file my Consent to Sue form?

You are not part of the FLSA case until your Consent to Sue Form is returned to the plaintiffs’ attorneys and then filed with the Court. If you delay in filing the Consent to Sue, part or all of your FLSA claims may be barred by the “statute of limitation.” Once a Notice is authorized by the Court, you must generally return the Consent to Sue form within the terms of the notice or the Court may not allow you to join this case. Click here for the Consent to Sue form.

Can Ecolab fire me or take action against me for joining the case?

The law prohibits retaliation for joining an overtime lawsuit. If any employee suffered retaliation, Ecolab would be liable for at least double the injury caused to the employee, and possibly additional damages. Notify us immediately if you think any retaliation has occurred. Retaliation is rare in overtime cases, because an employer can suffer such serious penalties.

Can Ecolab contact me about this case?

The law prohibits retaliation for joining an overtime lawsuit. If any employee suffered retaliation, Ecolab would be liable for at least double the injury caused to the employee, and possibly additional damages. Notify us immediately if you think any retaliation has occurred. Retaliation is rare in overtime cases, because an employer can suffer such serious penalties.

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