Man says he was fired after complaining about overtime

By Kelly Holleran | Sep 17, 2009

MARTINSBURG – A Charlestown man says he was terminated after his alleged complaints of being forced to work overtime without compensation for it.

In a federal putative class action lawsuit filed Aug. 5 in U.S. District Court for the Northern District of West Virginia, Michael D. Pittell says he and his fellow regional service technicians were forced to work extra hours for intellectual technology support company Tolt but were not paid overtime.

As a regional service technician, Pittell claims he was required to travel to various retail stores throughout Maryland, Pennsylvania, Virginia and West Virginia to fix any problems with cash registers and machines that process credit and debit card information.

At the start and end of each work day, regional service technicians must log into their computers and check their work assignments for the day, copy assignments to a spreadsheet on their work-provided computers, plan and map their routes to customer locations, communicate with their supervisors, review training manuals, complete and submit payroll and timekeeping records and communicate their work assignments and schedules over the phone, according to the complaint.

They are also on call 24 hours per day, seven days per week during the first three months of their work. At the end of the three-month period, regional service technicians are on call on the days they are scheduled to work. Being on call means workers are required to leave their cell phones on and must be available for emergency assignments, the suit states.

Regional service technicians, though, are only paid for eight-hour work days. They are instructed to work eight-and-a-half hours with a 30-minute lunch break. Most of the time, though, regional service technicians are too busy to break for an uninterrupted lunch, but are still required to record their hours as if they took a full break, the complaint says.

In addition, none of the regional service technicians were paid for the time they spent on call or for the work they performed at the start and end of their days, Pittell claims.

"Tolt pays overtime compensation only if it is attributable to time that a regional service technician spends working in the field for a particular customer on a specific work order," the suit states.

"Because regional service technicians do not have work order numbers that correspond to their pre-shift and post-shift tasks that they perform at home, they are not allowed to submit the time they spend performing integral and indispensable tasks for overtime compensation."

Pittell's supervisor warned him that if he tried to include overtime that had not been pre-approved, he would receive some type of disciplinary action, the complaint says.

"On several occasions, thereafter, Plaintiff complained to his supervisor that because of congested road traffic, weather and other conditions he could not complete several of his assignments without working overtime," the suit states. "Plaintiff also complained to his supervisor that he was not willing to work overtime without overtime compensation."

Eventually, when Pittell attempted to enforce his right to receive overtime pay, Tolt fired him, according to the complaint.
The class action is intended to include all regional service technicians who have reported to Tolt's Richmond, Va., office within the past three years.

Pittell alleges Tolt violated the Fair Labor Standards Act, was unjustly enriched, violated the West Virginia Wage Payment and Collection Act and retaliated against him by wrongfully terminating his employment.

Pittell is asking the court to certify the case as a collective action suit and is seeking compensatory, statutory, exemplary and punitive damages. He is also asking for penalties, reinstatement or restitution, an order enjoining Tolt from engaging in the unlawful activities described in the complaint, plus attorneys' fees, costs, pre- and post-judgment interest and other relief the court deems just.

Arthur J. Chmiel, Harry F. Bell and Roger L. Lambert of Bell and Bands in Charleston will be representing him.

U.S. District Court case number: 3:09-cv-54

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