KSG is investigating claims for a class action lawsuit against employers who misclassified their brand ambassadors as exempt employees. Sometimes called “brand advocates,” “operations consultants,” “client relationship associates,” “community outreach coordinators,” “customer experience supervisors,” or “product ambassadors,” these employees are robbed of their overtime pay by their employers.
According to the Federal Fair Labor Standards Act (FLSA), non-exempt employees who work over forty hours a week must be paid overtime: one and half times their regular rate per each hour of overtime. However, this rule doesn’t apply to the exempt employees since they are, as their name indicates, the exception to the rule; exempt employees are not eligible for overtime pay like non-exempt employees. Most employees are classified as non-exempt; if non-except employees work over forty hours a week, they are rightfully deserving of overtime pay unless they waive their rights.
Unscrupulous employers, however, have tried to skirt this law by misclassifying their employees. For example, ActionLink LLC, a marketing company that serves electronics and appliance manufacturers, has tried to avoid paying its brand ambassadors by misclassifying brand ambassadors as exempt employees instead of non-exempt employees. Brand ambassadors, who travel to stores to teach store employees how to use their products, often work fifty to seventy-five hours each week. Yet, they did not receive any overtime pay. Instead of calculating the brand ambassadors’ overtime properly and issuing their entitled wages, ActionLink issued checks with fine print stating that a brand ambassador: “By cashing this check… is agreeing that he or she has received full payment from ActionLink [sic] or [sic] wages earned, including minimum wage and overtime, up to the date of the check.”
However, according to a March 2015 ruling by the Court of Appeals for the Eight Circuit, a brand ambassador who cashes a check with such fine print does not waive his or her right to overtime pay since the act of cashing such a check does not suffice as an agreement between an employer and an employee. The FLSA requires that an employee who agrees to waive his or her overtime must receive written notice of his or her rights and damages he or she is waiving. In addition, he or she must also sign a valid waiver of the said rights and damages. Thus, these brand ambassadors – whether they cashed their checks or not – are eligible to sue ActionLink for failing to provide overtime pay.
If you or someone you know is a previous or current brand ambassador who has been misclassified by his or her employer as an exempt employee and thus suffered financial damages, please contact us. You may be eligible for reparations. All initial consultations are free of charge.
Kohn, Swift & Graf is a national leader in class actions, including complex consumer litigation. With experienced attorneys and a competent support staff, our firm strives to provide the highest quality of service to our clients. We treat each case with careful attention to ensure that consumers get the justice they deserve. KSG is centrally located in Philadelphia, PA.