Sacramento, CAIf you are one of about 8,000 current or former General Nutrition Corp. (GNC) assistant managers or sales associates, read on: You could receive overtime compensation pay under the California labor law and FLSA .“On January 7th a California federal judge granted class status to this case, which was brought by a former employee of GNC,” says employment attorney Leonard Emma.
Charles Brewer, a former California employee of GNC, filed a complaint in July 2011, which has since been amended twice. In January 2012 the suit claimed that employees who worked the closing shifts at GNC retail stores were not properly paid for certain tasks they completed after clocking out for the day, and often failed to receive California overtime pay. U.S. District Judge Yvonne Gonzalez Rogers ruled the certification partial because the scope of the opt-in class includes sales associates and assistant managers only and not managers and senior managers at GNC stores, which was asked by GNC employees in their initial request.
“There are two class actions within this lawsuit.” says Leonard Emma. “Plaintiff alleges overtime violations under the Fair Labor Standards Act (FLSA) on behalf of a nationwide class, which the Court certified. Plaintiff also alleges meal and rest period violations, off-the-clock violations and related causes of action on behalf of California employees. Plaintiff will move the Court to certify the California case next.”
The lawsuit (Case No.: 11-CV-03587 YGR) alleges that GNC doesn’t pay its retail store employees when they perform closing duties. “At a certain point during the night, GNC retail store employees log off the cash register and clock out. But they are still required to perform closing duties, including making offsite bank deposits, which leads to overtime violations.” In other words, taking the deposit to the bank after clocking out constitutes overtime.
Furthermore, GNC says it is up to its employees to report their hours accurately but there is no formal training provided regarding how employees can get paid for closing duties. According to GNC,
(1) employees are permitted to enter an estimated future time when they will be done working
(2) if they go over the estimated time, they can, with management approval, claim that time as overtime.
Emma says there is evidence that GNC discourages people from reporting hours worked beyond those hours they are scheduled for. “And as the court noted, GNC does not have any written policies or training and that, coupled with corporate culture to discourage overtime, results in people working off the clock nationwide. “
According to an opposition to class certification filed by GNC last October, the company says that it has maintained a time-card system that prompts employees working the closing shifts to estimate time they might spend completing tasks after they officially clock out. GNC further stated that it provides training to teach employees about making those estimations, and provides workers with an opportunity to make corrections to their time card.
Judge Rogers disagreed. The January 7th ruling said that the company had not provided evidence of written company policies that back up those contentions.
As per the court order: “GNC has no written policy setting forth the procedure for an employee to be paid for time spent performing post-closing duties; no written policy on estimating hours worked; and no written policy on adjusting hours to account for time spent performing post-closing duties if an employee exceeds the time estimate."
The court estimates that 8,000 class members in the US--GNC sales associates and assistant managers -- "may be entitled to overtime under the FLSA.