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Mark Thierman, a wage-and-hour pioneer for plaintiffs, is championing a new class of wage slave — stockbrokers. Wage-and-hour class actions are often portrayed as battles between corporations and low-paid workers. This time, however, Thierman and co-counsel James Clapp are litigating on behalf of potential class members that, as Thierman puts it, “earn so much money that nobody even thinks of them being entitled to overtime.” The two lawyers have teamed up in recent months to file a handful of class actions in four California counties on behalf of stockbrokers, taking aim at companies that include UBS Financial Services Inc.; McLaughlin, Piven, Vogel Securities Inc.; and Merrill Lynch, Pierce, Fenner & Smith Inc. Thierman and Clapp have filed their class actions in Alameda, San Francisco, San Diego and Los Angeles superior courts. The lawsuits seek overtime and repayment for wage deductions, which Thierman contends were used for regular business costs such as computers, software and administrative assistants. The classes have not been certified yet, adds Thierman, but he estimates that class members could number in the thousands. The cases strike an odd chord, given the potential class members who are thought to earn more than those who typically mount wage-and-hour class actions, according to other employment attorneys. While there have been a number of gender-discrimination class actions in the financial services industry, “I don’t recall seeing any in terms of wage-and-hour,” says David Borgen, a partner at Oakland’s Goldstein, Demchak, Baller, Borgen & Dardarian. Thierman, of the Thierman Law Firm in Reno, likewise cannot recall any other wage-and-hour cases on behalf of stockbrokers. Thierman says that he and Clapp came up with the idea after he wrote an article that discussed whether mortgage brokers are entitled to overtime pay. In the article, Thierman argued that since mortgage companies don’t qualify as retail establishments, mortgage brokers should not qualify for an “inside sales” exemption under federal law. After reading the article, Clapp, a partner at San Diego’s Dostart Clapp & Coveney, thought stockbrokers were in the same position as mortgage brokers. “It turns the tables a bit,” says Tyler Paetkau, a partner in Bingham McCutchen’s East Palo Alto office and the chairman of the State Bar’s labor and employment law section. Judges or jurors may think, “Why are you asking for more when you’re already getting a million dollars a year.” But plaintiffs’ lawyers will argue that “all we’re doing is enforcing the law,” adds Paetkau, who represents employers in wage-and-hour class actions. Wage-and-hour suits have become big business for plaintiff lawyers and a big headache for businesses. Companies have been forced to pay millions in suits alleging they misclassified low-level managers as being exempt from overtime pay. Changes to federal overtime rules, prompted by complaints that vague guidelines had led to confusion and litigation, took effect over the summer. Many employment lawyers in California, however, say the federal changes are almost beside the point when it comes to workplace-related pay disputes that arise in the state. “We’re telling them that, in most cases, there’s little or no change” in California, says Robert Tollen, a partner at Seyfarth Shaw. That’s because California law is much more protective of employees, says Michael Loeb, a partner at Bingham McCutchen. His firm, which represents employers, often conducts seminars to help educate clients about workplace laws and regulations — seminars that have become “schizophrenic” when it comes to clients who have employees throughout the country. While dispensing advice to managers from other states, Loeb has taken to telling those from California to “cover your ears.” Pam Smith is a reporter at The Recorder .

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