Russell Stover Candy Company Workers Sue for Overtime

May 11, 2013 — -- Employees for Russell Stover Candies Inc. filed a federal wage-and-hour lawsuit against the company, saying they were intentionally mislabeled as sales representatives and none of them "has ever been paid overtime."

Russell Stover Candies Inc., based in Missouri, employs about 5,000 people, including more than 170 sales representatives, the complaint said. The "overwhelming majority" of its candy is delivered to retailers like Walmart and grocery stores.

Nine workers said Russell Stover "misnamed them as 'sales representatives,'" making them exempt from overtime, when none of them worked primarily in sales, as required by the Fair Labor Standards Act of 1938. Most of the company's sales are performed or originate from employees other than the plaintiffs, the court filing said.

The suit was filed on Tuesday in the U.S. District Court in Atlanta for the Northern District of Georgia.

One plaintiff, a former sales representative named Cheryl Carter, a resident of Fulton County, Ga., worked for the company from May 2005 to December 2012. During that time, her duties "primarily" involved manual labor, the suit said, and she "regularly" worked more than 40 hours each week but was never paid overtime.

The sales representatives' duties the majority of time included receiving shipments, inspecting, unpacking, stocking, cleaning, processing credits and repairing display fixtures, according to the complaint.

Robbie Vorhaus, a spokesman for Russell Stover Candies, said the company received the complaint on Wednesday and was still reviewing it.

John Hunt, an attorney for the plaintiffs, declined to comment on their behalf.

Last June, the Supreme Court ruled in a 5-4 decision that drug companies do not have to pay sales representatives for working overtime, despite some arguments from employees that they were not actually selling medicine but promoting them to doctors.

Steven Kaminshine, dean of Georgia State University College of Law and an expert in labor and employment law, said cases claiming violation of the Fair Labor Standards Act are "very fact-dependent."

"A common area of dispute under the Fair Labor Standards Act turns on employee status -- whether it be the particular status at issue in this case, or the question of whether the individual is appropriately classified as an employee or an independent contractor, salaried employee or hourly employee," he said. "Many of the different classifications under the FSLA are determinative of receiving the protections of the statute."

The four former employees who are plaintiffs are residents of Georgia, South Carolina, Tennessee and Florida. The five current employees who filed the suit are residents of Florida, Mississippi and Tennessee.

They claim the company "intentionally and purposefully misclassified" them as "exempt" from the Fair Labor law requirements while not paying them 1.5 times their regular rate of pay for hours over the 40-hour workweek.

The suit claims that despite working more than 40 hours a week, the company created "a fictitious 'calculation'" on plaintiffs' paychecks that showed they worked 40 hours a week.

A sales representative's typical schedule included starting the day with a hand-held wireless computer to contact the company's "host computer" to receive the day's program updates. This process repeated again at 10 a.m., 2 p.m. and at the end of the day, according to the suit.

The employee drives a company vehicle to the first store to be serviced, then clocks in before getting out of the car and removes supplies from the car to service that store. The sales representative then goes into the store, signs in at the customer service desk, later dusting, cleaning or repairing candy shelves and displays. Other duties include meeting with a store employee to determine if there is space available for new candy and signing out of the store.

The plaintiffs say the company violated the Fair Labor Standards Act for "many years and continues today."