July 5, 2008

Panel Upholds Army Recruiters’ Right to Overtime Back Pay

By Pamela Manson, The Salt Lake Tribune

Jul. 5--As civilian military recruiters in Utah, Gary Clements and David Gerber were "selling" the U.S. Army Reserve and U.S. Army to potential soldiers.

But because only the Army could close the deal and enlist the recruits, the pair were not salesmen exempt from getting overtime under the federal law, the 10th U.S. Circuit Court of Appeals has ruled.

The court's opinion, issued earlier this week, upholds a 2006 ruling by U.S. District Judge Dee Benson in Salt Lake City that said the men are owed overtime from their former employer. One member of the three-judge panel that made the decision, Michael McConnell, wrote recruiters essentially "purchase" services from the recruit, making them more like buyers than sellers.

According to court records, Clements and Gerber worked in 2002 and 2003 for Resource Consultants Inc., which is now called Serco Inc. The two described their duties as cold-calling people to inform them about opportunities to serve in the Army or the Reserve.

The company, however, said their job was to give presentations to educational, civic and social organizations on the advantages of serving in the Army.

Recruits were enlisted at a Military Entrance Processing Station operated by the U.S. government.

Court records say the company paid a starting salary of $600 a week, plus a commission for meeting quotas for recruits who enlisted and reported to their assigned training center.

Clements contends he worked 480 hours of overtime during his approximately 10-month stint at Resource Consultants. Gerber said he worked 596 overtime hours in 11 months. But the company did not pay either employee overtime, leading them to file suit.

In his 2006 ruling, Benson found in favor of Clements and Gerber on the issue of overtime but against them on the issue of how to calculate the amount owed.

The judge found the pair were entitled under a company agreement to half-time rather than time-and-a-half.

They appealed, and the 10th Circuit upheld the ruling made by Benson, who ordered Clements paid $3,007 and Gerber $3,651 in back pay.

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