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Miles Locker is at it again. Just a week after the career attorney for the state of California was demoted for writing an unpopular opinion letter on the exempt status of workers, the chief counsel for the California Division of Labor Standards Enforcement is getting heat for his take on state overtime law. Once more the dispute centers on Locker’s interpretation of the state’s new overtime statute, which went into effect in January. And for the second time in as many weeks the 45-year-old attorney is being accused of misinterpreting the California Legislature’s intent when it reinstated the eight-hour workday in 1999. Locker was removed from his position as chief counsel at Labor Standards Enforcement by Gov. Gray Davis and had his opinion rescinded after his interpretation of the state’s salary-based exemption rule resulted in protests from business interests and employment lawyers. His name has since become almost synonymous with wage and hour battles in California. This time Locker’s troubles are coming from San Diego for a decision he made regarding the alternative work week — a discretionary work schedule that gives workers the option of working no more than 10 hours a day for four days a week. In late May, San Diego energy producer Solar Turbines Inc. sued to overturn the decision after it was notified by the DLSE that the scheduling structure for workers at its Taft power manufacturing plant violated state law. That law, Locker said, requires that companies not schedule workers for more than 10 hours a day or 40 hours a week. Solar Turbines lawyer John Zaimes called that interpretation “completely wrong.” Zaimes contends that under the law, employees can opt to work the alternative schedule and receive overtime pay for any hours over 10 as long as they don’t exceed 12 hours. He says Locker interprets the law to mean that no employee can work more than 10 hours in a day — period. “I think he’s way out in left field with his interpretation,” Zaimes said. He said although the Industrial Welfare Commission — the state agency charged with interpreting wage and hour laws — approved the 12-hour standard, his client received a notice from the Division of Labor Standards Enforcement anyway stating that the company would be prosecuted for not paying appropriate overtime. “The IWC says I’m right, and Locker says I’m wrong,” said Zaimes, who chairs the labor and employment group at Weston Benshoof Rochefort Rubalcava & MacCuish in Los Angeles. “We want a judge to look at this to tell us what the right interpretation is,” he added. Locker, who still holds his post until Oct. 1, said he would love to comment on the issue, but instead referred all questions to Assistant Chief Counsel Anne Hipshman, the lead attorney on the case for the DLSE. Hipshman said Zaimes is mistaken because although the law allows employees to vote to work an alternative schedule, the plan can’t exceed 10 hours a day. While employees are allowed to work more than 10 hours a day and receive overtime, they can’t be scheduled to do so on a regular basis. Under the statute, only health care workers are exempt from the 10-hour day. Solar Turbines went wrong, she said, when it allowed the 12 or so workers at its Kern County, Calif. plant to vote on a schedule that exceeded what the law allows. She said the schedule was also illegal because every other week it required workers to put in 12-hour shifts four days a week. “It violates the prohibition on scheduling for more than 40 hours a week,” she said. She added that Zaimes is absolutely wrong to say that the IWC agrees with him. She said the IWC concluded that employees can work more than 10 hours in a shift on a recurring basis, but that means there must be intervals where they are not required to work more than 10 hours. If Locker proves to be right — and employer-side lawyers hope he’s not — Solar Turbines may have to fork over a significant sum to compensate its workers for back pay. “We’re exploring the possibility of filing a cross complaint for overtime for all the affected employees,” Hipshman said.

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