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A ruling that could cost Wal-Mart millions of dollars in overtime pay should be reconsidered because the judge didn’t hear all the evidence, attorneys for the retail giant told an appeals court Wednesday. Wal-Mart asked the 10th U.S. Circuit Court of Appeals to order a new hearing in the case after a federal judge said the company had violated the law by failing to pay overtime to pharmacists. Wal-Mart attorney Steve Merker told a three-judge panel of the 10th Circuit that the trial judge should have heard evidence about U.S. Department of Labor rulings that companies can adjust salaried employees’ pay if economic conditions warrant. “The district court was wrong,” Merker told the judges. Gerald Bader Jr., an attorney for 900 pharmacists who have been challenging the company’s overtime rules since 1995, said there was no need for a hearing because the Labor Department has ruled that companies cannot arbitrarily change salaries for recurring events, such as seasonal declines in business during the off-season in Florida. “When Wal-Mart opens a store in Florida, they have to know there are fewer people there in the summer than there are in the winter,” Bader told the panel. Denver federal court Judge Zita Weinshienk ruled in 1999 that Wal-Mart violated federal law by classifying pharmacists as salaried employees who were ineligible for overtime, instead of hourly workers to are entitled to time-and-a-half pay for overtime. Estimates for the cost of unpaid overtime for the pharmacists have ranged up to $140 million. The class-action lawsuit was initially brought in 1995 by former Wal-Mart pharmacist Jerry Archuleta of Alamosa and two other southern Colorado pharmacists. Copyright 2004 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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